Modern  Political  Institutions 


Modern 
Political  Institutions 


By 
Simeon  E.  Baldwin,  LL.D. 

President  of  the  American  Social  Science  Association 

formerly  President  of  the  American  Bar  Association  and  of 

the  New  Haven  Colony  Historical  Society 


Boston 
Little,  Brown,  and  Company 


Copyright,  1898, 
BY  SIMEON  E.  BALDWIN. 

reserved. 


JOHN  WILSON  AND  SON,  CAMBRIDGE,  U.S.A. 


TO 


WILLIAM    KNEELAND    TOWNSEND,  D.C.L. 

DISTRICT    JUDGE    FOR    THE    DISTRICT   OF   CONNECTICUT, 
PHELPS   PROFESSOR   OF  LAW   IN   THE  YALE    LAW   SCHOOL, 

ONCE   MY    PUPIL, 
LONG  MY  ASSOCIATE, 
ALWAYS   MY    FRIEND, 

THIS    WORK    IS    DEDICATED. 


CONTENTS. 


CHAPTER  PAGE 

I.    INTRODUCTION i 

II.    THE  CENTENARY  OF  MODERN  GOVERNMENT    .  6 

III.  THE  FIRST  CENTURY'S  CHANGES  IN  OUR  STATE 

CONSTITUTIONS 45 

IV.  ABSOLUTE  POWER,  AN  AMERICAN  INSTITUTION  80 
V.    THE  EXEMPTION  OF  THE  ACCUSED  FROM  EXAM- 
INATION IN  CRIMINAL  PROCEEDINGS    .    .     .  117 

VI.    FREEDOM  OF  INCORPORATION 141 

II.    AMERICAN  JURISPRUDENCE 239 

VIII.    THE  DECADENCE  OF  THE  LEGAL  FICTION    .     .  266 
IX.    THE  RECOGNITION  OF    HABITUAL    CRIMINALS 

AS  A  CLASS  TO  BE  TREATED  BY  ITSELF  .     .  290 
X.    THE  DEFENCE  BY  THE  STATE  OF  SUITS  ATTACK- 
ING TESTAMENTARY  CHARITIES 316 

XL    SALARIES  FOR  MEMBERS  OF  THE  LEGISLATURE  322 
XII.    PERMANENT  COURTS  OF  INTERNATIONAL  ARBI- 
TRATION    341 

XIII.    THE  MONROE  DOCTRINE  IN  1898 359 


V 


INDEX 369 


Modern  Political  Institutions 

.9 

CHAPTER  I 

INTRODUCTION 

MODERN  history,  as  that  term  is  commonly 
used,  may  be  said  to  date  from  the  first  pub- 
lication of  printed  books.  Modern  politics  can  hardly 
be  said  to  have  begun  to  shape  themselves  until  after 
the  Protestant  Reformation,  nor  to  have  assumed  any- 
thing like  definite  and  settled  form  before  the  middle 
of  the  eighteenth  century.  Modern  political  institu- 
tions are  of  still  later  growth.  Political  history  is  the 
tree  from  which  they  branch.  Many  a  shoot  is  put 
forth  in  the  spring-time  of  a  nation,  to  wither  and 
perish.  The  work  of  natural  selection  is  nowhere  so 
unremitting  and  remorseless  as  in  the  development 
of  processes  of  government.  The  Puritans  and  the 
Commonwealth  brought  no  lack  of  new  political  the- 
ories before  the  people  of  England  and  of  New  Eng- 
land. Many  were  tried,  but  few  chosen.  The  French 
philosophers  of  the  eighteenth  century  did  as  much 
for  their  countrymen,  and  the  revolution,  which  they 
brought  on,  winnowed  their  work,  and  scattered  most 
of  it  to  the  winds.  Their  seeds  of  socialism  were 
blown  over  Europe,  and  have  found  perhaps  the  most 
friendly  soil  among  the  Germans,  but  from  the  coun- 

i 


2  INTRODUCTION 

ter  spirit  of  imperialism  with  which  they  must  con- 
tend, what  root  they  have  taken  there  is  for  the  most 
part  of  a  sentimental  and  personal,  rather  than  a 
practical  and  national  description.  And  where  any 
new  principle  of  legislation  or  jurisprudence  has  been 
fairly  adopted  by  any  nation,  it  cannot  assume  an 
institutional  character  until  the  generation  by  which 
it  was  adopted  has  passed  away. 

Political  institutions  rest  on  popular  assent.  They 
must  have  been  tested  by  long  use,  and  not  found 
wanting.  They  must  seem  part  of  the  natural  order 
of  things  to  those  whom  they  affect;  and  nothing 
seems  natural  to  any  man  into  which,  as  part  of  his 
earliest  surroundings,  he  was  not  born  and  bred. 
Such  there  are,  native  to  the  nineteenth  century.  It 
came  into  existence  when  they  were  already  estab- 
lished, and  it  accepted  them,  if  not  without  a  question, 
yet  at  least  with  the  presumption  in  their  favor.  It 
has  added  to  them  others,  akin  in  character,  and  to 
the  second  and  third  generation  of  men  which  it  has 
produced,  these  too  have  been  familiar  and  cherished 
from  earliest  childhood. 

It  is  of  institutions  of  our  own  time,  institutions 
which  became  such  by  the  recognition  and  approval 
of  our  own  century,  or  are  contending  for  that  of 
the  twentieth,  that  this  volume  is  designed  to  speak. 
And  what,  taking  the  term  in  this  sense,  are  the  chief 
among  modern  political  institutions? 

Any  answer  that  can  be  given  must  be  largely  a 
matter  of  individual  opinion.  I  shall  venture  to  state 
them,  as  they  appear  to  me,  in  the  order  of  their 
importance. 


INTRODUCTION  3 

The  foundation  of  all  government  on  the  consent 
of  a  majority  of  the  people. 

Religious  liberty. 

The  written  constitution  as  the  supreme  law. 

The  protection  by  law  of  the  individual  against  the 
State. 

The  protection  by  law  of  the  individual  against 
himself. 

The  combination  of  political  absolutism  with 
democracy. 

The  secret  ballot. 

Simpler  and  surer  methods  of  legal  procedure. 

Freedom  of  incorporation  under  general  laws. 

Minority  representation  in  office. 

The  regulation  of  succession  to  the  dead  in  the 
interest  of  the  State. 

International  arbitration. 

To  these  I  would  add,  for  the  United  States,  the 
Monroe  Doctrine. 

Political  institutions  come  unheralded  and  unnamed. 
They  defy  close  classification.  It  is  hard  even  to  de- 
fine what  manner  of  thing  they  are.1  A  law  may 

1  One  may  be  warned  against  the  attempt  by  the  definition  of  a 
legal  institution  recently  essayed  by  a  scholarly  writer  on  the  law  of 
Corporations,  in  the  following  words  :  — 

"  The  term  legal  institutions  connotes  a  body  of  legal  rules  in  their 
manifestation  in  legal  relations  between  persons  of  whom  certain 
correlated  conditions  of  fact  are  predicable."  (Taylor  on  Corpora- 
tions, §  24.) 

The  hardest  things  to  define  are,  happily,  those  which  are  so  well 
understood  that  definition  is  unnecessary,  except  as  a  scholastic  exer- 
cise. I  once  spent  towards  half  a  day  with  two  friends  in  discussing 
the  proper  definition  of  "  a  stone."  We  failed  to  frame  any  that  could 
pretend  to  exactitude,  but  nevertheless,  in  common  with  everybody 


4  INTRODUCTION 

serve  as  their  starting-point,  but  it  can  be  nothing 
more.  That  only  can  be  called  an  institution  which 
has  fastened  itself  upon  the  community,  and  sunk  its 
hold  deep  into  the  heart  and  life  of  the  people.  No 
institution  can  be  called  great  which  has  not  thus  be- 
come a  part  of  the  political  conceptions  and  existence 
of  more  lands  than  one.  In  the  brief  list  which  has 
been  given,  there  may  be  some  which  have  less  right 
to  recognition  than  others  that  will  occur  to  the 
thoughtful  reader.  There  are  some  which  loom  up 
more  boldly  before  the  American  than  they  may  be- 
fore the  European.  I  believe,  however,  none  have 
been  included  which  do  not  fairly  belong  to  the  do- 
main of  the  universal  in  modern  state-craft.  Each 
but  the  last  has  already  been  transplanted  far,  and 
each  is  of  a  kind  to  root  in  any  soil. 

Of  the  dozen  which  have  been  named,  there  are 
several  of  which  little  will  be  said.  These  are  the 
best  and  most  familiar.  They  speak  for  themselves ; 
and  more  consideration  has  seemed  due  to  those 
which  appear  open  to  just  criticism,  or  are  the  growth 
of  comparatively  recent  years. 

Several  of  the  chapters  which  follow  treat  of  insti- 
tutions which  I  had  made,  in  previous  years,  the  sub- 
ject of  public  addresses,  and  my  views  are  often 
expressed  in  the  language  employed  on  those  occa- 
sions. I  am  sensible  that  such  words  may  have  a 
warmth  of  tone  that  seems  less  suited  to  the  printed 
page  than  to  the  platform,  but  my  apology  must  be 
that  I  feel  warmly,  now,  as  I  did  then,  what  to 

else  we  all  knew  very  well  when  to  use  the  word,  and  what  was  the 
appearance  of  its  subject. 


INTRODUCTION  5 

Americans  is  the  national  importance  of  the  theme. 
Unity  of  social  policy,  uniformity  of  statute  law  and 
judicial  procedure,  solidarity  of  national  beliefs, — 
these  are  what  the  people  of  the  United  States  must 
put  before  themselves  as  the  ideals  to  be  striven  for. 
Their  ultimate  fulfilment  has  been  made  possible  by 
the  civil  war  that  swept  away  forever  what  had  made 
till  then  the  great  difference  between  the  Northern 
and  the  Southern  States,  and  brought  in  the  new 
nation.  It  is  hard  not  to  be  declamatory  when  one 
speaks  in  earnest,  with  such  aims  in  view. 


CHAPTER   II 

THE  CENTENARY   OF  MODERN   GOVERNMENT1 
1789-1889 

THE  closing  quarter  of  the  nineteenth  century 
came  crowded  with  great  anniversaries.  A 
long  series  of  American  centennials  ended  with  that 
of  the  voyage  which  first  really  added  the  new  world 
to  the  old.  England  in  1888  commemorated  the 
peaceful  revolution  which  set  William  of  Orange  on 
her  throne,  and  France  a  year  later  was  on  fire  with 
the  recollections  of  the  fiercer  struggle  that  re-created 
her  institutions. 

But  among  all  these  centennial  years  that  of  1889 
stood  out  the  first,  because  it  had  more  than  a  na- 
tional significance.  It  closed  the  centenary  of  mod- 
ern government. 

Modern  languages,  modern  literature,  with  its  spirit 
of  free  inquiry,  modern  civilization  and  discovery, 
bringing  in  powers  and  necessities  unknown  before, 
had  all  given  their  new  life  to  society  before  Europe 
began  to  demand  political  freedom.  It  was  the  in- 
capacity of  a  highly  civilized  society,  merely  as  such, 
to  satisfy  the  human  soul,  that  drove  men  to  a  new 

1  In  preparing  this  chapter,  free  use  has  been  made  of  the  annual 
address  before  the  American  Bar  Association  delivered  by  the  author 
at  its  meeting  in  Chicago,  August  29,  1889. 


MODERN   GOVERNMENT  7 

opening  for  their  energies  in  public  life  and  in  the 
public  good.  James  Wilson,  in  the  Convention  by 
which  Pennsylvania  ratified  our  national  Constitution, 
declared  that  the  science  of  government  seemed  yet 
to  be  almost  in  its  state  of  infancy.  It  was  not  be- 
cause mankind  were  unfamiliar  with  the  different 
forms  governments  may  assume,  or  the  different  ends 
they  may  serve.  It  was  known  that  they  might  be 
constituted  simply  for  the  good  of  the  governed  and 
by  their  consent.  We  had  had  free  constitutional 
commonwealths  on  our  own  soil  since  the  days  of 
the  Puritans,  the  sturdy  outgrowth  of  the  life  of  a 
liberty-loving  people.  But  those  colonial  republics, 
such  as  Connecticut  and  Rhode  Island,  had  nothing 
in  them  of  the  nation.  If,  for  a  few  years,  they 
claimed  a  kind  of  autonomy,  it  was  soon  gladly  ex- 
changed for  a  chartered  dependence  on  the  British 
crown. 

In  Europe  there  had  been  democracies  and  repub- 
lics through  half  the  history  of  the  human  race,  but 
which  of  them  deserved  the  name  or  earned  the  place 
of  a  constitutional  government?  England,  if  any. 
England  had  tried  and  executed  one  king,  and  had 
driven  another  from  her  throne  a  hundred  years 
before  the  Federal  Constitution  was  adopted;  but 
England  was  still  a  monarchy,  supported  by  an 
hereditary  aristocracy  and  a  corruptible  and  cor- 
rupted Commons,  and  limited  by  nothing  stronger 
than  traditions,  as  they  might  be  interpreted  by 
judges  appointed  by  the  crown. 

Frederick  Robertson  said,  fifty  years  ago,  that  he 
would  close  his  Bible  forever  if  he  did  not  look  for 


8  THE   CENTENARY   OF 

better  times  for  England  —  times  when  merit  should 
find  its  level ;  when  worth  should  be  interpreted  by 
what  a  man  is,  and  not  by  what  he  has,  nor  by  what 
his  relations  have  been. 

The  Declaration  of  Independence  brought  in  such 
times  to  America.  If  for  the  next  quarter  of  a  cen- 
tury there  lingered  too  much  deference  for  distinc- 
tions of  birth,  if  for  the  last  quarter  of  a  century 
there  has  been  growing  up  a  new  power  of  property 
to  give  the  rich  too  much  of  public  consideration, 
these  tendencies,  at  most,  have  been  too  slight  to 
affect  the  main  current  of  American  life.  It  has 
swept  on  towards  a  true  liberty,  equality,  fraternity; 
truer  than  has  ever  yet  come  to  the  great  nation  where 
first  those  words  were  linked  together,  —  because  she 
sought  them  by  the  path  of  destruction.  She  was 
driven  by  a  sad  history  to  seek  them  there.  But  to 
American  soil  they  had  been  borne  by  friendly  hands 
a  century  before.  "The  Mayflower"  brought  with  her 
more  than  her  company  of  Pilgrims. 

"  Laws,  Freedom,  Truth,  and  Faith  in  God 
Came  with  those  exiles  o'er  the  waves." 

And  the  spirit  of  Puritanism  was  nobler  than  Puri- 
tanism. They  "  builded  better  than  they  knew."  It 
may  be  that  the  spirit  of  New  England  Puritanism  was 
nobler  than  the  spirit  of  Puritanism  in  the  land  they 
left.  It  looks  so,  as  we  review  the  history  of  their 
century,  and  see  England  turn  so  sharply  from  the 
austere  simplicity  of  the  Commonwealth  to  the  gay 
license  that  came  in  with  Charles  the  Second.  No 
such  revulsion  of  public  feeling  marked  the  return 
of  the  Stuarts  in  the  American  colonies.  No  man 


MODERN   GOVERNMENT  9 

here  had  been  acting  a  part.  Institutions  had  been 
founded  on  ideas,  not  on  military  successes  or  politi- 
cal triumphs.  Those  ideas,  no  doubt,  fell  short  of 
the  ideals  of  the  Americans  of  those  days,  as  they  fall 
short  of  ours;  but  their  direction  was  right.  They 
heralded  the  approach  of  modern  government.  For 
the  first  beginnings  of  its  actual,  its  acted  life,  we  look 
to  America ;  for  the  first  beginnings  of  its  philosophy, 
we  look  to  France. 

France  was  to  the  statesmen  of  our  Revolution  what 
Greece  in  her  days  of  greatness  was  to  early  Rome, 
the  source  of  intellectual  and  political  inspiration. 
They  looked  to  England  for  precedents,  to  France 
for  principles.  The  same  year1  had  given  to  the 
world  the  studies  of  Pothier  and  D'Aguesseau  in 
Roman  law,  and  of  Montesquieu  on  the  spirit  of  laws 
in  general.  In  the  youth  of  Jefferson  and  Adams,  of 
Madison  and  Hamilton,  Montesquieu's  definitions  of 
jurisprudence,  his  rule  for  the  threefold  division  of 
power,  his  limitation  of  republican  government  to 
small  States,  were  the  talk  of  the  day. 

France  and  America  were  both  preparing,  though 
they  hardly  knew  it,  to  put  these  philosophies  to  a 
test 

The  two  countries  had  before  them,  each,  a  very 
different  task.  Both  were  to  reform  their  political 
institutions.  But  France  had  also  to  reform,  to  re- 
adjust, to  re-constitute,  the  relations  of  her  people  to 
each  other. 

The  States  General  was  a  gathering  of  classes 
around  a  sovereign.  King,  nobles,  clergy,  commons 
1  1748. 


io  THE   CENTENARY   OF 

met  to  work  some  unknown,  yet  inevitable  change  in 
their  mutual  attitude.  The  law  might  thenceforth 
make  all  commons,  all  sovereigns;  but  generations 
must  pass  before  such  a  law  could  be  a  living  thing. 
When  a  society  is  re-constructed  from  turret  to 
foundation-stone,  by  some  fiat  of  legislation,  make  it 
what  you  will,  and  it  remains  still  but  a  castle  in  the 
air,  till  long  years  have  made  men  used  to  their  new 
conditions.  Then  first  will  liberty,  if  it  was  gained, 
become  a  real  possession,  because  then  only  will  it  be 
known  for  what  it  is. 

No  such  issue  lay  before  the  American  people 
when  our  States  General  —  the  representatives  of 
their  thirteen  free  commonwealths  —  met  at  Phila- 
delphia in  1787.  There  were  no  hereditary  privileges 
to  attack,  no  absolute  power  to  check,  no  classes  to 
harmonize. 

It  was  two  years  later  that  the  people  of  France, 
represented  in  a  National  Assembly,  published  their 
memorable  Declaration  of  the  Rights  of  Man. 

The  States  General,  out  of  which  that  Assembly 
sprang,  had  been  convoked  for  the  first  time  for  a 
century  and  a  half.  There  is  something  majestic  in 
the  gathering  of  such  a  body,  to  be  called  into  exist- 
ence only  at  vast  and  unknown  intervals,  on  some 
great  emergency  of  State.  So  men  felt,  whatever 
their  religious  faith,  when  the  Church  of  Rome 
brought  together,  in  1870,  at  the  Vatican,  the 
first  council  of  her  prelates  throughout  the  world 
that  had  met  since  that  assembled  at  Trent  three 
hundred  years  before,  to  stay  the  progress  of  the 
Protestant  Reformation.  So  it  was  when  the  dele- 


MODERN   GOVERNMENT  n 

gates  of  the  American  people,  for  the  first  and  last 
time  met  in  convention  in  1787,  to  frame  a  Constitu- 
tion that  would  perpetuate  their  union.  Such  an 
assembly,  with  its  far-reaching  powers,  untried  by 
use,  may  precipitate  or  it  may  prevent  a  revolution. 

When  President  Harrison,  in  1889,  stood  in  New 
York,  on  the  spot  where,  under  his  great  predecessor, 
the  first  true  government  of  the  United  States  began, 
to  celebrate  the  close  of  its  first  century,  no  memories 
were  recalled  but  those  of  peace.  But  when,  a  week 
later,  President  Carnot,  at  Versailles,  met  the  legis- 
lature of  the  French  Republic  to  commemorate  the 
anniversary  of  the  opening  of  the  States  General,  no 
one  could  forget  the  reign  of  terror  that  had  so 
soon  followed  the  reign  of  despotism.  The  States 
General  had  met  in  the  beginning  of  the  seventeenth 
century.  They  met  next  at  the  end  of  the  eighteenth. 
During  that  long  stretch  of  time  France  had  had  no 
government  but  the  king.  While  Virginia  was  form- 
ing her  House  of  Burgesses  that  brought  representa- 
tive government  into  America;  while  the  Puritans 
were  constituting  Christian  commonwealths  in  New 
England  ;  while  all  the  English  colonies  on  this  conti- 
nent were  alike  learning  the  true  maxims  of  civil 
liberty;  while  the  leaders  of  our  Revolution  were 
growing  into  statesmen  by  slow  experience,  —  French- 
men could  know  the  principles  of  politics  only  by 
study  of  books,  or  by  observation  in  foreign  lands. 
We  cannot  wonder,  then,  that  France,  in  1789,  felt  that 
as  for  her  civil  institutions  she  had  nothing  to  pre- 
serve ;  that  all  were  bad,  and  that  to  abolish  all  was 
her  first  duty. 


12  THE   CENTENARY   OF 

In  his  commemorative  address,  on  the  occasion  I 
have  just  named,  President  Carnot  declared  that  this 
meeting  of  the  States  General  created  a  new  era  in 
history,  and  founded  modern  society. 

It  is  a  bold  claim  for  any  people  to  make  that  by 
one  national  event  they  have  changed  the  current  of 
human  history.  It  has  been  made  by  Americans  for 
the  social  compact  signed  upon  the  "  Mayflower ;  "  for 
the  early  Constitution  of  Connecticut ;  for  the  Decla- 
ration of  Independence;  for  the  formation  of  the 
Federal  Constitution.  But  the  real,  unsolved  problem 
of  government,  in  1/89,  was  to  make  and  keep  a  great 
people  free ;  not  any  infant  colony  of  Plymouth  or 
Connecticut ;  nor  any  petty  republic  of  Attica  or  San 
Marino;  not  even  any  cluster  of  States,  bound 
together  while  fighting  for  independence ;  but  a  great 
people,  spread  over  a  great  territory. 

The  United  States  of  1789  rested  on  a  Constitution 
framed  two  years  before,  subversive  and  destructive  of 
an  earlier  Constitution  agreed  to  as  perpetual ;  and  of 
our  thirteen  States  two  had  deliberately  refused  to  ac- 
cept the  second.  To  the  National  Assembly  of  France, 
as  to  the  ministry  of  Great  Britain,  it  seemed,  in  1789, 
that  the  American  experiment  had  already  failed. 

But  modern  government  was  not  to  be  compassed 
in  a  day.  For  one  thing  it  needed  a  revival  of  that 
spirit  of  national  patriotism  that  had  been  dead  or 
sleeping  since  the  days  of  the  Roman  republic. 

Patriotism  had  been  the  keystone  of  virtue  to  the 
ancient  world.  It  had  glorified  with  immortality  the 
pass  of  Thermopylae,  and  made  men  deem  a  few 
sprigs  of  laurel  or  a  street  procession  the  most  pre- 


MODERN   GOVERNMENT  13 

cious  thing  in  life.  But  from  the  day  that  Brutus 
trampled  on  human  love,  for  love  of  country,  to  the 
day  when  the  dagger  of  political  assassination  re- 
appeared in  Europe,  in  the  hands  of  a  woman,  and 
Charlotte  Corday  slew  one  of  the  new  Caesars  of  new- 
born France,  the  very  word  "  patriotism  "  had  gone  out 
of  the  speech  of  men,  and  almost  out  of  the  thought 
of  poets.  Loyalty  had  usurped  its  place:  the  bond 
to  law,  not  to  country ;  to  your  king,  your  feudal  lord, 
not  to  your  fellow-citizens ;  to  the  Church  universal, 
perhaps,  not  to  the  altars  of  your  own  community. 

"  Patriotism/'  said  Johnson,  after  the  American 
Revolution  had  done  its  work,  "  is  the  last  refuge  of 
a  scoundrel."  "  Patriotism,"  wrote  Lessing  a  few 
years  before,  "  is,  at  the  highest,  a  heroic  weakness 
which  I  am  very  glad  to  be  without."  The  world 
had  been  without  it  since  the  first  century  of  the 
Christian  era.  It  fell  at  Rome  when  free  government 
fell.  It  found  no  help  in  the  Christian  Church.  That 
had  for  its  purpose  the  submission  of  all  nations  to  a 
common  faith,  and  it  strove  for  a  thousand  years 
to  achieve  it  by  subordinating  civil  to  ecclesiastical 
authority.  The  spirit  of  individualism  arose  in  pro- 
test, and  put  manhood  before  citizenship.  The  middle 
ages  rolled  away ;  the  Renaissance  was  followed  by 
the  Reformation;  the  Stuarts  yielded  to  the  Com- 
monwealth, the  Commonwealth  to  the  Stuarts;  the 
new  world  was  peopled  with  European  colonies ;  and 
still  the  life  of  modern  society  was  unconceived. 

The  light  broke  when  French  philosophers  asserted 
that  correlation  of  forces  in  political  power  by  which 
a  true  socialism  complements  a  true  individualism; 


i4  THE   CENTENARY   OF 

by  which  the  authority,  which  must  always  be  admin- 
istered by  a  few,  shall  be  constituted  and  controlled 
by  the  many;  by  which,  as  Mill  has  said,  "  the  im- 
portance of  the  masses  becomes  constantly  greater; 
that  of  individuals,  less." 

France  has  made  the  "  Ideas  of  Eighty-nine  "  a 
familiar  phrase,  but  they  were  only  the  acted  expres- 
sion of  ideas  struck  out  on  the  same  soil  a  generation 
before.  And  modern  government  has  risen  out  of 
them  but  slowly  into  form.  The  key  with  which  the 
spirit  of  our  time  unlocks  all  mysteries,  the  law  of 
evolution,  life-giving  and  life-lifting,  has  done  its  work. 
In  institutions,  as  in  animated  nature,  there  is  the 
struggle  for  existence,  and  the  survival  of  those  fittest 
to  survive. 

And  what,  as  we  review  the  century,  has  been 
achieved,  what  retained,  and  what  discarded  ?  How 
has  socialism  been  blended  with  individualism?  What 
new  ends  have  been  proposed  for  legislation ;  what 
new  immunities  secured ;  what  new  chapter  of  liberty 
opened? 

We  must  answer,  first,  that  modern  government 
does  not  concern  itself  only  with  the  material  well- 
being  of  the  community.  Magna  Charta  is  no  more 
its  measure  than  is  the  Decalogue  the  measure  of 
Christianity.  The  right  to  personal  security,  to  prop- 
erty, to  trial  by  one's  peers,  to  tax  one's  self,  —  to 
establish  these  was  the  ultimate  end  of  ancient 
government.  Modern  government  retains  them  all, 
but  adds:  the  right  of  equality  before  the  law,  and 
in  the  law ;  the  duty  in  civil  matters  to  ignore  dis- 
tinctions of  religion;  the  duty  of  spreading  educa- 


ff  l  n*       ^X 

^UNIVERSITY  ) 

: 


MODERN   GOVERNMENT  15 

tion,  information,  intelligence  at  public  cost;  the 
right  of  labor  to  protection,  at  the  expense  of  capi- 
tal, and  in  the  interest  of  humanity. 

If  I  were  to  say  which  of  these  things  was  in  the 
highest  sense  the  fruit  of  our  own  century,  I  should 
name  religious  liberty. 

Nowhere,  until  the  last  part  of  the  eighteenth  cen- 
tury, had  the  State  been  kept  totally  separate  from 
the  institutions  of  religion.  The  original  beginning 
of  human  society,  in  the  family,  the  clan,  the  tribe, 
made  the  patriarch  also  the  priest.  The  household 
gods  were  peculiar  to  the  household;  the  national 
gods  to  the  nation.  Religion  was  a  part  of  patriot- 
ism. Rulers  might  change;  kings  might  give  place 
to  republican  magistrates ;  but  the  national  deities, 
the  national  worship,  would  remain  the  same.  Pro 
aris  et  pro  focis  was  the  watchword  of  war. 

Christianity  came,  and  found  the  world  subject  to 
this  law.  But  the  spirit  of  Christianity  was  universal, 
catholic,  not  national.  Its  kingdom  was  not  of  this 
world.  As,  however,  its  doctrines  spread,  and  as 
some  of  them  began  to  be  but  half  understood  by 
those  who  taught  them,  government  turned  to  it  for 
aid.  It  became  a  part  of  the  imperial  system.  When 
that  fell,  it  conquered  the  conquerors,  and  for  fourteen 
hundred  years  was  the  stay  of  every  civilized  govern- 
ment in  Europe  and  America. 

The  religious  liberty  for  which  the  Puritans  crossed 
the  sea  was  simply  liberty  to  make  their  form  of 
religion  the  law  of  a  new  community.  Rhode  Island, 
with  her  utmost  toleration,  allowed  no  Roman 


1 6  THE   CENTENARY   OF 

Catholic  in  public  office  until  long  after  the  Declara- 
tion of  Independence.1  In  Protestant  Europe,  as  in 
Catholic  Europe,  the  union  of  Church  and  State 
remained  unbroken.  Men  had  risen  up  against  the 
tyranny  of  ecclesiastical  power;  men  had  pulled 
kings  from  their  thrones  and  set  up  others,  or  set  up 
none.  The  same  struggle  against  unjust  government 
had  sometimes  been  shared  by  those  who  attacked 
the  Church  and  those  who  attacked  the  State.  The 
same  leaders  might  indeed  attack  both,  but  they 
seldom  attacked  or  questioned  the  union  of  both.  In 
England  the  Puritans  fought  against  episcopal,  the 
Republicans  against  royal  tyranny;  but  both  were 
ready  to  bind  the  Commonwealth  to  another  form  of 
national  religion. 

A  State  church  had,  no  doubt,  been  long  the  scorn 
of  atheists  and  indifferentists ;  but  it  endured  until 
religion  itself  rose  to  the  level  of  rejecting  it;  until 
Christianity  came  to  see  and  teach  that  there  are  two 
worlds  about  us :  the  world  we  live  in  knowingly,  — 
the  world  of  time,  the  world  of  the  body  and  the 
mind;  and  the  world  we  live  in  unknowingly,  —  the 
world  of  eternity,  the  world  of  the  spirit ;  that  gov- 
ernments belong  only  to  the  world  of  the  present, 
with  no  larger  life  than  it  can  give ;  that  they  are  less 
than  the  men  they  govern,  and  when  they  have  sought 
to  give  laws  to  the  human  spirit  have  opposed  them- 
selves to  the  order  of  the  universe. 

Modern  government  began  when  the  State  with- 
drew from  its  long  alliance  with  Christianity. 

11783. 


MODERN   GOVERNMENT  17 

It  was  a  natural  epoch  in  the  history  of  individual- 
ism. Family,  patriarchal,  tribal  governments,  had 
rested  on  a  family,  patriarchal,  tribal  religion.  The 
teachers  of  Christianity  had  sought  to  make  one 
family  of  all  nations,  under  the  Church  of  Rome,  and 
had  failed  in  the  attempt.  The  Protestant  Reforma- 
tion had  —  so  far  as  governments  were  concerned  — 
done  little  except  to  put  the  power  of  the  Church  into 
the  hands  of  the  civil  magistracy.  But,  so  far  as  in- 
dividual men  were  concerned,  it  had  declared  a  new 
right  of  private  judgment  in  matters  of  religion. 
And,  however  kings  and  legislators  may  have  en- 
deavored to  reconcile  this  right  with  religious  estab- 
lishments at  the  common  cost,  the  struggle  has  been 
a  hopeless  one. 

Nor  need  I  say  that  religion  has  nowhere  suffered 
by  being  left  to  itself.  In  Leipsic,  for  instance,  where 
a  certain  form  of  religious  establishment  exists,  with 
a  population  of  nearly  200,000,  there  are  now  but  six 
churches  in  which  Sunday  services  are  regularly  held. 
In  no  American  city  of  that  size  would  there  be  found 
less  than  a  hundred ;  and  it  is  on  American  soil  that 
disestablishment  had  its  earliest  and  has  struck  its 
deepest  roots. 

Virginia,  in  1786,  in  a  statute  drafted  by  Jefferson, 
proclaimed  it  "  to  be  a  natural  right  of  mankind  that 
religious  opinions  shall  never  affect  civil  capacities, 
and  that  no  man  can  be  compelled  to  support  any  re- 
ligious worship."  This  declaration,  soon  translated 
into  French  and  Italian,  was  circulated  widely  in 
southern  Europe.  Madison  had  defended  it  in  the 
legislature  with  his  accustomed  vigor.  The  question, 


1 8  THE   CENTENARY   OF 

he  said,  had  been  stated  by  the  opponents  of  the  bill, 
as  if  it  were,  "  Is  religion  necessary?  "  But  the  true 
question  was,  "  Are  establishments  necessary  for 
religion?  " 

Next  came  the  Ordinance  of  1787,  to  lay  the  foun- 
dations of  government  for  the  vast  territory  out  of 
which  sprang  the  commonwealths  surrounding  the 
great  lakes.  It  has  not  the  ring,  upon  this  point,  of 
the  statute  of  Virginia,  but  it  does  declare  that  no 
person  shall  ever  be  molested  on  account  of  his  mode 
of  worship  or  religious  sentiments,  so  long  as  he 
keeps  the  public  peace. 

That  same  summer  the  convention  that  framed  our 
Constitution  was  sitting  with  closed  doors  in  Phila- 
delphia. Its  work  was,  no  doubt,  in  the  main,  a  re- 
arrangement of  existing  materials.  It  took  American 
institutions  and  put  them  in  a  new  order  and  combi- 
nation. But  it  did  more. 

Every  delegate  came  from  a  State  where  some  civil 
distinctions  had  always  flowed  from  religious  distinc- 
tions. There  was  probably  not  more  than  one  who 
would  not  have  considered  himself  an  adherent  of  the 
Christian  faith.  The  leaders  were  familiar  with  the 
political  philosophy  of  antiquity,  and  with  that  of 
their  own  day;  with  Montesquieu  and  with  Adam 
Smith.  They  found  an  unbroken  current  of  authority 
in  favor  of  uniting  civil  and  religious  institutions,  to 
some  extent,  in  every  government.  And  yet  at  the 
call  of  the  youngest  of  them,  Charles  Pinckney  of 
South  Carolina,  fresh  from  his  law  studies  in  the 
Inner  Temple,  they  were  ready  to  take  this  great 
step  forward,  by  forever  prohibiting  all  religious  tests 


MODERN    GOVERNMENT  19 

for  office  or  public  trust,  under  the  United  States. 
He  made  the  proposition  a  month  after  the  enact- 
ment of  the  Ordinance  of  1787.  The  committee  of 
detail  to  which  it  was  referred  took  no  notice  of  the 
suggestion  in  their  report;  but  Pinckney  secured  its 
adoption  as  an  amendment,  and  it  stands  as  the  close 
of  the  last  Article  but  one. 

In  advocating  the  ratification  of  the  Constitution  in 
the  South  Carolina  convention,  a  year  later,  he  in- 
sisted on  this  feature  as  all-important.  There  was, 
he  said,  but  one  great  government  in  Europe  which 
provided  for  the  security  of  private  rights,  and  that 
withheld  from  part  of  its  subjects  the  equal  enjoy- 
ment of  their  religious  liberties.  Avoiding  this  error, 
we  were  to  "  be  the  first  perfectly  free  people  the 
world  had  ever  seen."  1 

At  this  time,  we  must  not  forget,  and  for  forty 
years  later,  the  Test  Act  and  Corporation  Act  of 
England  excluded  all  men  from  office  who  were  not 
members  of  the  Church  of  England.  Most  of  our 
own  States  retained  some  religious  test  as  a  quali- 
fication for  the  higher  offices,  and  religious  estab- 
lishments were  not  forbidden  in  any,  and  expressly 
provided  for  in  the  Constitutions  of  six.2 

This  opening  of  public  trusts  to  all  men,  on  an 
equal  footing,  found  warm  support  from  the  leaders 
of  the  clergy,  even  in  New  England,  where  their 
influence  was  strongest.  Fifteen  ministers  were  mem- 
bers of  the  Massachusetts  convention,  and  all  but  one 
voted  for  the  ratification  of  the  Constitution. 

1  4  Elliott's  Debates,  319. 

2  Delaware,  Georgia,  Maryland,  Massachusetts,  New  Hampshire 
and  South  Carolina. 


20  THE   CENTENARY  OF 

"  Many,"  said  one  of  them,  the  Rev.  Isaac  Backus, 
with  reference  to  this  abolition  of  religious  tests, 
"  appear  too  much  concerned  about  it,  but  nothing 
is  more  evident,  both  in  reason  and  the  Holy  Scrip- 
tures, than  that  religion  is  ever  a  matter  between  God 
and  individuals.  .  .  .  The  imposing  of  religious  tests 
hath  been  the  greatest  engine  of  tyranny  in  the 
world."  l 

"  God  alone,"  said  Rev.  Phillips  Payson,  in  the 
same  body,  "  is  the  God  of  the  conscience ;  and  con- 
sequently attempts  to  erect  human  tribunals  for  the 
consciences  of  men  are  impious  encroachments  on 
the  prerogatives  of  God."2 

The  provision  against  religious  tests  for  office  left 
Congress  still  free  to  set  up  a  religious  establishment. 
One  may  well  fall  without  the  other.  Such  has  been 
the  slow  course  of  English  history.  But  when  the 
sons  of  New  England  Puritans,  New  York  Church- 
men, Pennsylvania  Quakers,  Maryland  Catholics,  Vir- 
ginia Cavaliers,  Huguenot  Carolinians,  came  together 
to  join  their  independent  commonwealths  in  a  na- 
tional life,  they  could  not  fail  to  see  that  church 
unity  was  impossible.  The  very  fact  that  so  many 
of  our  States  had  had  a  State  religion  was  the 
strongest  argument  why  the  Union  should  have 
none. 

New  Hampshire,  where  Roman  Catholics  were  de- 
barred from  office  until  1877,  was  the  first  to  propose  3 
a  further  guaranty  of  religious  liberty  as  an  amend- 
ment to  the  Constitution.  Virginia  and  New  York 

1  2  Elliott's  Debates,  148.      2  Ibid.,  120.        8  June  21,  1788.  • 


MODERN   GOVERNMENT  21 

acted  promptly  in  the  same  direction,  and  it  was  for 
want  of  this,  among  other  provisions,  that  North  Caro- 
lina refused  to  ratify  the  Constitution  at  all.  At  the 
first  session  of  the  first  Congress,  such  an  amendment 
was  proposed  to  the  States.  It  was  set  third  in  a 
list  of  twelve,  preceded  by  one  to  regulate  the  num- 
ber of  representatives  in  the  lower  house,  and  another 
to  prevent  Congress  from  increasing  the  pay  of  its 
members  after  their  election.  The  States  impatiently 
swept  both  of  these  away,  and  so  put  at  the  head 
of  the  ten  which  they  ratified  the  provision  against 
church  establishments  and  church  domination,  —  fitly 
placed  first,  because  the  most  important,  the  most 
novel  of  all. 

The  National  Assembly  of  France  was  also  moving 
towards  the  same  end,  and  there,  too,  the  mass  of  the 
clergy  were  at  first  with  the  reformers.  Progress  in 
Europe  has  been  naturally  slower  than  with  us,  for 
there  was  more  to  surrender.  The  support  of  the 
nation  has  often  been  accorded  to  different  churches, 
on  equal  terms.  There  has  been  disestablishment  in 
one  part  of  a  country,  and  not  in  another.  But  it  is 
safe  to  say  that  in  no  country  of  Christendom  is  any 
church  connected  with  the  government  in  the  same 
close  way  in  which  it  was  throughout  the  course  of 
ancient  society. 

And  this  again  has  thrown  new  functions  on  the 
State. 

The  Church,  in  former  days,  had  the  general  charge 
of  education.  It  collected  the  scholars,  it  supplied 


22  THE   CENTENARY   OF 

the  teachers,  it  paid  them,  it  regulated  their  work, 
and  saw  that  its  own  doctrines  and  discipline  were 
made  a  part  of  all  instruction.  But  when  it  could  no 
longer  draw  from  the  public  treasury,  or  when  the 
State  went  one  step  further  and  deprived  it  of  its 
accumulated  possessions,  this  duty  of  education  be- 
came a  public  one.  The  more  ignorant  the  people, 
the  firmer  the  government,  when  that  government 
exists  for  others'  benefit.  But  give  the  people  real 
power,  and  they  must  be  taught  how  to  use  it,  if  you 
would  not  have  it  used  to  their  destruction. 

I  do  not  forget  that  public  education  had  been  the 
child  of  New  England  from  the  days  of  the  Puritans. 
But  only  in  this  century  has  it  become  national,  and, 
we  may  say,  universal  in  free  governments. 

It  was  the  French  Constitution  of  1791  that  really 
introduced  it  as  a  feature  of  modern  government  on 
a  great  scale ;  and  Germany  adopted  the  principle  of 
compulsory  education  when  it  was,  even  here,  but  a 
half-tried  experiment. 

That  the  ideal  State  should  rest  on  a  basis  of  pub- 
lic instruction  is  indeed  no  idea  of  modern  times. 
When  Plato  sketched  his  plan  of  the  republic  of 
the  future,  he  set  it  on  that  foundation.  It  was  the 
hope  of  Harrington,  —  the  early  practice  of  Massa- 
chusetts and  Connecticut.  It  was  for  our  age  to  ex- 
tend it  to  great  nations,  at  the  cost  of  millions;  to 
bring  it  even  into  Oriental  government,  so  that  in 
Japan  to-day  there  are  30,000  public  schools,  nearly 
200  colleges,  and  two  great  universities,  all  largely 
supported  from  the  imperial  treasury. 

But  this  transfer  of  a  great  prerogative  from  the 


MODERN    GOVERNMENT  23 

Church  to  the  people  has  its  inevitable  dangers.  If 
there  is  a  national  peril  towards  which  we  are  now 
drifting,  it  lies  in  this  direction.  It  is  the  question 
of  the  right  and  duty  of  the  State  as  to  education 
in  matters  of  religion. 

It  is  the  law  of  many  of  our  States  that  every  child 
must  be  educated  to  a  certain  point,  either  at  a  pub- 
lic school  or  under  private  instruction.  The  Roman 
Catholic  Church  has  always  believed  that  religion, 
and  the  religion  which  it  holds  itself,  is  a  necessary 
part  of  all  true  education.  It  has,  during  the  last 
twenty  years,  taken  formal  issue  with  the  American 
public-school  system  and  organized  a  system  of  its 
own,  of  parochial  schools.  Whether  this  policy  be 
right  or  wrong,  there  should  be,  surely,  the  fullest 
liberty  to  pursue  it.  Laws  have  been  recently  pro- 
posed in  more  than  one  of  the  States  to  forbid  the 
use  of  any  text-book  in  a  private  school  not  ex- 
amined and  approved  by  some  public  authority,  and 
even  to  make  it  penal  to  use  influence  upon  a  father 
to  induce  him  to  take  his  children  out  of  a  public 
school.  If  such  laws  ever  come  to  be  enacted,  it 
would  be  indeed  a  sign  that  the  principles  of  Ameri- 
can liberty  are  losing  ground. 

The  State  church  was  never  without  a  State  uni- 
versity, and  it  was  a  fitting  thing  that  the  hand  which 
drew  the  Declaration  of  Independence  was  also  that 
which  sketched  the  plan  for  the  first  great  State 
university  in  America.  The  epitaph  of  Jefferson, 
written  by  himself,  names  but  three  events  in  a  long 
life  of  public  service,  and  they  epitomize  the  his- 


24  THE   CENTENARY   OF 

tory  of  American  liberty.     "  HERE,"  say  the  solemn 
words,  — 

"HERE   LIES   BURIED 

THOMAS  JEFFERSON, 

AUTHOR   OF   THE   DECLARATION  OF  AMERICAN  INDEPENDENCE, 
OF   THE   STATUTE    OF    VIRGINIA    FOR    RELIGIOUS    FREEDOM, 
AND    FATHER   OF   THE    UNIVERSITY    OF    VIRGINIA." 

The  influence  of  an  established  church,  also,  in 
literature  was  always  a  controlling  one.  The  great 
libraries,  from  which  all  good  books  grow,  were 
founded  and  maintained  by  its  revenues.  Modern 
government  has  inherited  this  function,  and  the  pub- 
lic library,  free  to  all,  and  open  to  every  author,  from 
vast  collections  like  the  British  Museum  to  the 
bookcase  in  the  country  schoolhouse,  is  the  great 
gift  of  the  age  towards  a  larger  national  life. 

The  State  church  was  a  great  bureau  of  registration, 
tracing  out,  where  it  was  strongest,  by  its  entries  of 
baptisms,  marriages,  and  funerals,  the  course  of  every 
individual  life.  The  place  of  this  is  now  everywhere 
supplied  by  a  system  of  public  record  offices. 

In  thus  separating  from  any  political  union  with  the 
Church,  the  State  does  not  cease  to  regard  it  as  a 
natural  ally.  And,  in  token  of  this,  an  exemption 
from  taxation  of  property  held  for  religious  uses  of 
any  kind  is  almost  universally  conceded,  the  equiva- 
lent, of  course,  of  a  large  annual  grant  from  the 
treasury.  Government  seeks  no  longer  from  the 
Church  the  aid  of  any  divine  sanction  for  constituted 
authority,  but  it  still  recognizes  religion  as  the  best 


MODERN    GOVERNMENT  25 

teacher  of  morals,  and  therefore  the  best  friend  of 
public  order  among  a  free  people. 

The  exclusion  of  the  Church,  with  its  paternal 
authority  and  paternal  bounty,  from  a  voice  in  gov- 
ernment, has  contributed  greatly  towards  the  devel- 
opment of  that  State  socialism  which  no  civilized 
country  is  now  wholly  without. 

It  begins  with  giving  free  schools,  free  libraries, 
perhaps  free  universities ;  but  it  does  not  stop  there. 
It  establishes  parks,  museums,  galleries  of  art;  builds 
railroads,  and  controls  them ;  inspects  the  tenement 
house;  lays  paved  sidewalks  in  every  village.  It 
arranges  this  vast  system  of  national  and  international 
mails,  by  which  two  cents  takes  a  letter  from  Boston 
to  San  Francisco,  and  five  cents  carries  it  to  Tokio 
or  Australia.  It  regulates  the  hours  of  labor,  the  age 
of  labor.  It  throws  new  duties  on  the  employer.  In 
Germany,  where  State  socialism  goes  farthest,  it 
forces  the  laborer  to  insure  himself,  out  of  his  wages, 
against  the  chance  of  future  want,  as  we  have  long 
compelled  our  seamen  to  insure  in  the  same  way 
against  sickness  or  disability,  by  payments  to  the 
Marine  Hospital  Fund. 

But  while  State  socialism  means  more  in  one 
country  than  another,  modern  government  has  one 
universal  characteristic,  —  popular  representation  in 
the  legislature,  based  on  a  wide  and  constantly  widen- 
ing grant  of  suffrage. 

There  were  hardly  any  of  our  American  States,  a 
hundred  years  ago,  which  did  not  demand  that  the 


26  THE   CENTENARY   OF 

elector  should  be  a  tax-payer.  There  are  hardly  any 
now  that  do  require  it.  England  has  reached  almost 
the  same  result.  Germany,  France,  and  Greece  have 
gone  beyond  it,  and  made  suffrage  universal.  Every 
citizen  is  incorporated  into  the  German  Empire  by 
taking  him,  through  a  public  education  and  military 
service,  up  to  the  ballot-box,  on  equal  terms. 

The  republic  is  but  one  form  of  modern  govern- 
ment, but  this  republican  principle  of  a  broad  suffrage 
is  at  work  in  all.  Its  inevitable  tendency  is  towards  the 
universal  abolition  of  class  distinctions,  —  a  tendency 
stronger,  of  course,  in  proportion  to  the  freedom  and 
equality  already  gained. 

It  was  this  that  forced  negro  suffrage  upon  the 
South  at  the  close  of  the  Civil  War.  There  were 
weighty  reasons  against  thus  pushing  the  freedman 
at  once  into  the  ranks  of  the  electors.  He  belonged 
to  a  race  that  has  known  little  of  political  power,  and 
done  nothing  to  prove  its  fitness  to  enjoy  it,  and  he 
had  been  reared  in  ignorance  and  dependence.  But 
negro  suffrage  was  an  American  idea.  It  prevented 
the  formation  of  a  new  social  class.  Laws  had  already 
been  passed  in  several  of  the  Southern  States —  "  ap- 
prentice laws  "  —  which  would  soon  have  formed  one, 
had  a  class  of  freedmen  survived  the  war. 

The  negro  has  often  used  the  suffrage  ignorantly, 
selfishly,  unwisely.  Many  another  has  done  the  same. 
But  when  he  received  the  gift  and  passed  into  the  great 
circle  of  American  citizenship,  the  last  class  less  than 
citizens  was  abolished,  I  hope  forever,  from  American 
statute-books.  Nor  was  it,  as  an  indication  of  political 
development,  to  be  compared  in  significance  to  the 


MODERN    GOVERNMENT  27 

movements  in  a  similar  direction  in  England,  begin- 
ning with  the  Reform  Bill  of  1832,  and  ending  with 
the  vote,  in  1889,  of  the  House  of  Commons,  when  1 60 
members  declared  themselves  in  favor  of  abolishing 
all  hereditary  seats  in  the  House  of  Lords,  and  the 
government  could  muster  but  about  200  to  defeat  the 
motion. 

The  grant  of  suffrage  to  women  is  now  becoming 
common  in  municipal  elections.  It  has  been  tried 
in  those  of  a  more  public  character.  If  I  were  to 
forecast  the  future  I  should  say  that  whether 
modern  government  in  Europe  is  to  tend  towards 
republicanism  or  towards  monarchy  will  depend 
in  no  small  degree  upon  its  treatment  of  this 
question. 

Goethe  has  declared  that  women  love  order  rather 
than  freedom.  If  the  number  of  voters  is  doubled 
by  their  admission  to  it,  the  stability  of  settled 
dynasties  and  the  glitter  of  courts  may  find  a  new 
support  against  any  movement  towards  the  rough 
changes  of  republican  administration. 

Modern  government  makes  the  ballot  more  and 
more  the  instrument  of  suffrage,  even  in  legislatures. 
The  change  in  this  has  been  almost  revolutionary. 

In  England,  landlords  seeking  to  control  their  ten- 
ants, employers  seeking  to  control  those  in  their 
service,  established  interests  seeking  to  prevent  re- 
form, and  sentimentalists  relying  on  the  dignity  of 
manhood,  had  combined  to  exclude  it  from  her  institu- 
tions. Even  in  the  Municipal  Corporations  Act  of 


28  THE   CENTENARY   OF 

1835,  the  ballot  in  municipal  elections  was  made  an 
open  one,  with  the  name  of  the  voter  who  cast  it 
written  upon  each. 

Our  own  colonies  passed  into  independence  under 
the  influence  of  the  same  ideas.  Down  to  1787  the 
State  of  New  York  had  always  elected  the  members 
of  its  legislature  by  acclamation,  and  its  first  Constitu- 
tion permitted  a  change  to  election  by  ballot  simply 
as  something  worthy  of  a  "  fair  experiment "  l  and 
subject  to  a  return  to  the  old  system,  if  the  legisla- 
ture should  decide  that  the  experiment  was  unsuc- 
cessful. 

But  no  free  nation  has  ever  adopted  the  ballot  and 
then  discarded  it,  unless  she  was  ready  to  discard  her 
freedom.  The  ends  of  modern  government  demand 
it  in  its  completest  form.  It  was  for  remote  Australia 
to  revive  this  form,  after  the  lapse  of  two  thousand 
years,  and  give  the  world  again  the  secret  ballot  as 
Cicero  knew  it,  when  he  described  it  as  the  vindex 
tacitce  libertatis.  The  Roman  ballot,  under  the  Ga- 
binian  law,  was  furnished  by  the  State,  and  bore  the 
names  of  all  who  were  in  nomination,  the  elector 
marking  by  a  point  that  of  the  candidate  whom  he 
preferred.  The  interplay  of  national  influences,  so 
characteristic  of  the  age,  was  never  more  conspicuous 
than  in  the  re-introduction  of  this  plan  in  modern  use. 
Successful  in  Australia,  England,  under  the  lead  of 
Gladstone,  did  not  disdain  to  follow  one  of  her  young- 
est children  in  extending  it  to  Parliamentary  elec- 
tions, and  our  own  States  have  adopted  it  in  rapid 
succession. 

1  Poore's  Charters  and  Constitutions,  ii.  1333. 


MODERN    GOVERNMENT  29 

Modern  government  is  coming  to  put  a  new  limita- 
tion on  the  suffrage,  —  that  the  majority  shall  not 
govern. 

Minority  representation  in  office  is  the  invention  of 
the  last  half  of  the  century,  both  as  regards  elections 
by  districts  of  inhabitants  of  the  district,  as  distin- 
guished from  voting  for  a  general  ticket,  and  as 
regards  voting  for  less  than  the  number  to  be  elected. 

Thirty  years  ago  this  latter  plan  was  adopted  by 
the  British  Parliament  for  the  elections  to  the  House 
of  Commons  from  some  of  the  larger  constituencies, 
and  a  few  years  later  the  cumulative  vote  became  a 
part  of  the  elective  system  of  Illinois  for  members  of 
its  legislature,  and  was  adopted  by  Pennsylvania  for 
the  government  of  her  private  corporations.  In  our 
municipal  corporations,  one  or  the  other  of  these 
methods  is  rapidly  becoming  the  rule  for  the  election 
of  all  official  boards. 

But  with  all  these  changes  in  the  range  and  mode 
of  suffrage,  the  power  that  goes  with  it,  as  distin- 
guished from  the  numbers  by  whom  it  is  shared, 
has  not  risen  to  the  height  anticipated  in  the  "  ideas 
of  '89,"  as  these  were  formulated  then  in  the  Consti- 
tution of  the  French  Republic.  Sovereignty,  they 
said,  belonged  to  the  people.  It  was  one  and  indivisi- 
ble, imprescriptible  and  inalienable.  One  genera- 
tion could  not  bind  succeeding  generations  to  its 
laws.1 

Jefferson's  private  correspondence  shows  that  he 
brought  back  from  France  these  conceptions  of  the 

1  Constitution  of  1793,  Articles  25  and  28. 


3o  THE   CENTENARY   OF 

rights  of  the  people,  but  they  found  no  place  in  his 
political  action  or  in  the  institutions  of  America. 

On  the  contrary,  it  is  the  corner-stone  of  modern 
government  that  there  shall  be  obligations  created  or 
preserved  by  an  organic  law  which  no  popular  major- 
ity and  no  legislative  majority  can  overcome,  except 
through  forms  and  delays  prescribed  by  that  law  for 
its  own  defence.  It  is  this  that  makes  the  modern 
republic  —  that  has  made  the  United  States  and  every 
State  that  is  associated  to  compose  them  —  possible. 
And  it  is  itself  made  possible  by  an  American 
device. 

The  history  of  all  republics  before  ours  had  been 
that  either  of  weakness  or  of  certain  lapse  into  the 
hands  of  tyrants.  It  was  for  us  to  show  that  supreme 
and  ultimate  power  could  be  so  intrusted  to  a  few 
men  that  they  would  have  slight  temptation  to  abuse 
it,  and  that  its  exercise  would  seldom  cause  political 
disturbance,  or  even  attract  so  much  as  the  notice  of 
the  community. 

The  problem  was  to  make  the  legislative  power, 
whether  exercised  by  popular  or  parliamentary  vote, 
subject  to  some  superior  authority,  and  still  leave  it 
free  to  represent  the  public  will.  The  American 
solution  is  through  the  judiciary,  but  it  does  not  con- 
sist in  simply  writing  down  that  will  in  the  form  of  a 
Constitution  and  comparing  every  statute  with  it. 

The  justiciary  of  Aragon  once  had  the  power  of 
annulling  laws  which  he  deemed  contrary  to  the  fun- 
damental principles  of  the  monarchy.  But  he  could 
exercise  it  of  his  own  motion,  as  an  abstract  political 
question ;  and  the  power  was  found  too  great  to  be 


MODERN    GOVERNMENT  31 

tolerated.  The  modern  plan  of  making  the  political 
question  dependent  on  the  issues  of  some  private  liti- 
gation, to  be  decided  like  any  other  contested  matter 
incidental  to  the  suit,  seems  illogical  and  unsystematic ; 
but  it  does  not  offend  by  any  show  of  authority ;  it 
takes  the  initiative  from  the  court  and  gives  it  to  any 
private  citizen ;  it  secures  respect  without  seeming  to 
command  it. 

A  Rhode  Island  court,  in  1786,  first  brought  this 
function  of  the  judiciary  distinctly  into  action,  in 
determining  the  construction  of  her  charter,  and  the 
Circuit  Courts  of  the  United  States  exercised  it  with- 
out hesitation,  in  reference  to  an  early  Act  of  Con- 
gress, five  years  later,1  so  that  when,  in  Marbury  v. 
Madison?  it  was  first  applied  by  the  Supreme  Court, 
it  had  already  come  to  be  recognized  as  a  necessary 
part  of  our  American  institutions.3 

The  threefold  division  of  the  powers  of  government, 
insisted  on  by  Montesquieu,  is  expressed  in  most 
modern  Constitutions.  In  monarchies  they  seek  to 
hold  the  power  of  the  executive  in  check  by  increas- 
ing that  of  the  legislature.  In  republics,  they  seek  to 
hold  the  legislative  power  in  check  by  strengthening 
the  executive. 

With  us,  this  confidence  in  the  executive  power  is 
not  any  traditional  inheritance  from  colonial  days. 
The  veto  of  the  colonial  governors,  when  they  had 
one,  was  rarely  used  except  in  opposition  to  the 

1  Hayburn's  Case,  2  Dallas,  410.  2  I  Cranch,  137. 

3  This  subject  has  been  treated  of  with  great  fulness  and  learning 
in  a  posthumous  essay  by  Brinton  Coxe,  on  Judicial  Power  and  Uncon- 
stitutional Legislation.  Phila.,  1893. 


32  THE   CENTENARY   OF 

popular  will  and  the  popular  interests.  In  the  early 
State  Constitutions,  it  was  rejected,  with  one  solitary 
exception,  —  that  of  Massachusetts.  It  is  now  found 
in  all  but  six. 

We  have  adopted  it  because  experience  —  and  expe- 
rience is  the  result  of  many  experiments  —  has  taught 
us  to  believe  in  a  strong  executive,  provided  it  is  a 
good  one,  and  because  we  find  it  easier  to  watch  one 
man  than  an  assembly  of  men. 

We  adopted  it  in  the  face  of  the  course  of  the 
mother-country,  which  had  turned  so  sharply  in  an- 
other direction.  The  Puritans  left  England  before 
she  came  to  be  governed  by  a  ministry,  responsible 
to  her  legislature.  Americans  saw  her  change,  in  the 
hundred  years  that  followed  the  accession  of  William 
and  Mary,  her  whole  system  of  administration.  The 
executive  was  deprived  of  its  veto ;  the  upper  house 
of  Parliament  crowded  back  into  insignificance  ;  the 
leader  of  the  House  of  Commons  had  become  the 
real  king. 

All  this  the  new  States  of  America  saw,  but  they 
still,  even  while,  at  first,  following  England  in  abolish- 
ing the  veto  power,  agreed  in  rejecting  the  device  of 
a  parliamentary  ministry,  and  deliberately  preferred 
to  leave  the  responsibility  of  administration  unchecked 
in  the  hands  of  their  governors. 

The  Federal  Constitution  followed  in  the  same 
lines.  The  President  has  his  cabinet,  but  they  are 
nothing  in  power,  —  men  of  his  choosing,  the  agents 
and  assistants  of  his  will,  with  no  seat  in  Congress, 
and  no  fear  of  it. 

The  veto,  that  English  kings  retain  only  in  name, 


MODERN   GOVERNMENT  33 

has  been  with  us  often  the  best  safeguard  of  the 
people,  and  was  never  more  powerful  for  good  than 
it  is  to-day.  The  legislature  itself  has  come  often  to 
rely  on  the  executive,  and  not  in  vain,  to  defeat  bills 
which  it  has  not  the  courage  to  reject,  or  the  patience 
to  examine.  At  a  recent  session  of  that  of  our 
greatest  State,  two-thirds  of  the  bills  enacted  were 
passed  within  the  last  ten  days;  thus  leaving  it 
wholly  in  the  hands  of  the  Governor  to  say,  after 
the  adjournment,  whether  they  should  become  laws 
or  not. 

We  are  not  afraid  of  the  executive,  because  we 
have  guarded  ourselves  against  any  act  of  his  that 
might  oppress  us  by  something  stronger  than  Magna 
Charta.  We  have  made  him  powerful  because  his- 
tory has  proved,  even  our  own,  that  the  executive 
power  is  often  the  best  protection  against  the  tyranny 
of  majorities. 

Nor  does  modern  government  in  any  way  tend  to 
lessen  the  personal  dignity  and  weight  of  the  execu- 
tive. It  recognizes  the  strong  impulse  of  the  human 
mind  to  respect  and  reverence  for  authority,  as  rep- 
resented in  whatever  individual  is  the  titular  head  of 
the  nation.  The  public  interest  in  every  incident  in 
the  daily  life  of  the  President  of  the  United  States,  or 
of  Queen  Victoria,  means  something.  It  is  what  has 
kept  alive  so  many  monarchies  in  the  past,  which 
existed  only  as  an  incumbrance  on  society.  The  per- 
sonal equation  in  government  is  a  constant  force,  the 
more  powerful  because  unmoved  by  reason,  uncon- 
trolled by  law. 

We  recognize  the  sentiment  of  hero-worship,  but 
3 


34  THE   CENTENARY   OF 

we  see  its  limits.  Our  governments  guard  against 
the  hero,  and  against  the  unwisdom  of  his  worship- 
pers, by  laws  and  institutions  that  are  insensible  to 
enthusiasm. 

Carlyle  may  still  preach  to  this  generation  that 
national  well-being  depends,  not  on  any  merit  of  laws 
or  institutions,  but  on  human  goodness  and  human 
greatness.  The  century  listens  to  him  with  respect, 
but  not  with  faith.  It  would  have  men  good,  if  it 
can ;  but  it  would  have  good  laws,  because  it  can. 
The  people  may  stand  for  many  bad  men,  many  fool- 
ish men,  many  headstrong  men ;  but  the  machinery 
of  modern  government  keeps  them  in  check.  Marcus 
Aurelius  was  one  of  the  best  rulers  that  mankind  has 
ever  had,  but  the  machinery  of  ancient  government 
allowed  him  —  in  all  ignorance  and  honesty  of  pur- 
pose—  to  persecute  and  tread  down  the  new  religion 
that  had  come  to  transform  the  earth.  The  laws  of 
New  England,  rather  than  the  Puritans,  were  guilty, 
when  women  were  hanged  as  witches  at  Salem. 

For  another  feature  of  modern  government,  we 
may  look  back  to  a  Roman  origin.  The  difficulty  of 
combining  a  strong  central  administration  for  an  im- 
mense territory  with  due  provision  for  the  good  gov- 
ernment of  every  part,  Rome  met  by  the  organization 
of  municipal  corporations  to  regulate  local  interests. 
The  dark  ages,  the  institutions  of  feudalism,  the 
strengthening  of  monarchical  power,  swept  municipal 
autonomy  out  of  existence.  This  century  has  restored 
it  with  new  guaranties  against  corruption,  or  abuse 
of  power,  and  broadened  it  from  the  walled  town  to 


MODERN   GOVERNMENT  35 

the  village,  the  school-district,  the  county,  colony, 
province  and  State. 

To  these  local  agencies,  more  and  more,  matters  of 
local  regulation  are  being  confided,  and  Home  Rule 
has  become  the  watchword  of  free  government. 

One  quarter  of  our  population  is  now  centred  in 
our  cities.  A  hundred  years  ago  there  was  no  city 
in  the  Union  which  numbered  40,000  inhabitants. 
How  many  States  are  now  without  one?  And  how, 
except  in  this  way,  could  such  great  gatherings  of 
freemen  be  kept  in  order? 

The  combination  of  local  home  rule  with  a  central 
authority  to  direct  inter-communication  between  the 
several  communities,  and  determine  all  questions  of 
foreign  relations,  is  the  best  form  that  modern  con- 
stitutions assume. 

It  was  a  daring  experiment  to  attempt  it  here  in 
1789,  and  the  hazard  grew  when  the  Louisiana  pur- 
chase came,  a  few  years  later.  It  is  not  too  much  to 
say  that  only  the  mechanical  inventions  of  the  century 
have  preserved  its  political  ideals.  The  steamboat, 
the  railroad,  the  telegraph,  the  newspaper  dashed 
from  electrotypes  by  the  cylinder  press,  have  in  quick 
succession  brought  the  broadest  territories  into  close 
communication  with  their  centres. 

In  some  respects  they  have  reversed  the  practical 
working  of  our  own  Constitution,  as  men  anticipated 
it.  The  electoral  colleges,  for  instance,  meeting  on 
the  same  day  in  every  State,  might  now  agree  by 
telegraph  on  common  candidates ;  but,  on  the  other 
hand,  modern  facilities  of  travel  have  made  those 
national  conventions  possible  the  power  of  which 


36  THE   CENTENARY   OF 

has  made  the  presidential  electors  but  empty  names. 
The  capital,  which  many  fancied,  from  the  length  of 
the  journey  to  it,  would  become  the  ordinary  res- 
idence of  senators,  if  not  of  representatives,  the  seat 
of  an  intriguing  oligarchy,  is  the  home  now  of  no 
one  but  the  President,  a  handful  of  judges,  and  the 
department  clerks.  The  centre  of  affairs  for  every 
office-holder  remains  the  community  from  which  he 
comes. 

The  rule  of  local  laws  for  local  interests,  enacted 
under  such  limitations  as  may  be  prescribed  by  some 
central  authority,  has  smoothed  the  way  for  another 
innovation  of  transcendent  importance  :  that  all  laws 
must  be  general,  applicable  to  all  men,  and  all  in- 
terests, in  similar  positions.  To  this,  modern  society 
is  driven  by  its  rule  of  equality.  The  world  was  not 
much  given  to  legislation  before  the  days  of  the 
French  Revolution.  All  the  statutes  of  Rome,  in  the 
days  of  her  greatness,  were  not  more  in  number  than 
one  of  our  larger  States  is  now  accustomed  to  enact 
in  every  decade.  There  is  but  one  remedy  to  be 
applied  :  the  universal  prohibition  of  special  legisla- 
tion where  a  general  law  will  secure  the  end.  And 
this  is  possible  only  by  granting  extended  powers  of 
local  administration  to  local  governments. 

The  evils  of  over-legislation  in  this  country,  how- 
ever, are  by  no  means  proportioned  to  its  amount. 
Much  of  it  is,  at  worst,  but  useless.  Americans  do  not 
often  legislate  except  to  meet  some  practical  neces- 
sity, real  or  imagined.  There  is  little  speculative  or 
theoretical  statute  law,  such  as  marked  the  entry  of 


MODERN    GOVERNMENT  37 

France  into  the  field  of  modern  government.  This 
makes  our  statute-books  unsymmetrical,  but  it  makes 
them  safe.  Nor  are  our  Constitutions  as  open  to 
this  charge  as  our  ordinary  legislative  acts.  We 
have  not  forgotten  that  there  are  laws  so  deeply 
rooted  in  the  society  out  of  which  they  spring  that 
they  execute  themselves.  We  know  that  these  are 
the  best  laws,  and  that  the  modern  Constitution  does 
best  when  it  is  their  simplest  expression. 

Another  characteristic  of  modern  government  is  its 
support  from  journalism.  It  may  be  fairly  said  that 
it  could  not  exist  and  could  not  have  existed  with- 
out it,  less  from  the  direct  influence  which  it  exerts 
than  from  the  publicity  and  close  scrutiny  of  official 
action  which  it  secures. 

Until  a  hundred  years  ago,  legislatures,  the  world 
over,  sat,  practically,  with  closed  doors.  Journalism 
during  this  century  has  demanded  that  they  be 
thrown  open,  and  has  thus  put  the  people  bodily  into 
the  legislative  assembly.  Secrecy  has  been  lost,  and 
safety  gained,  —  safety,  for  no  law  is  so  bad  as  the  ill- 
considered  law,  and  no  law  can  be  well  considered 
that  has  not  been  fully  discussed  in  public,  by  the 
men  whose  interests  it  concerns. 

Here,  I  think,  has  been  the  great  work  of  the  news- 
paper in  politics.  It  has  turned  on  the  electric  light. 

Its  direct  influence  on  the  masses  of  the  people 
may  be  easily  overrated.  It  acts  on  the  politicians 
more  than  on  the  community  at  large.  It  distributes 
offices,  and  brings  men  into  power,  but  it  is  often 
forced  to  think  and  act  too  quickly,  perhaps  too  sel- 


38  THE   CENTENARY   OF 

fishly,  to  be  in   touch  with  the  real    movements   of 
public  opinion. 

Newspaper  discussion  of  questions  of  State  is,  no 
doubt,  often  flippant,  and  sometimes  shows  a  desire 
to  say  something  striking  rather  than  to  say  some- 
thing true.  In  a  government  like  Germany,  but  half 
modernized,  the  newspaper,  too,  is  but  half  modern- 
ized. When  Bismarck  in  1889  brought  into  the 
Reichstag  a  bill  to  visit  editors  of  socialistic  journals, 
who  denied  the  right  of  private  property,  with  three 
years'  imprisonment,  it  was  because  he  wished  no 
schemes  of  socialism  but  his  own ;  and  his  law  showed 
what  Germany  lacks,  a  Constitution  which  makes 
socialism,  in  the  evil  sense,  impossible,  and  leaves  it 
a  harmless  theory,  the  more  harmless  when  the  most 
discussed. 

Modern  government  is  becoming  more  and  more 
a  government  by  party.  But  parties  represent  less 
than  they  once  did.  As  class  lines  fade  out,  and 
class  interests  no  longer  exist  to  be  protected ;  as 
public  education  lifts  the  mass  of  the  community  to  a 
more  intelligent  and,  therefore,  more  candid  view  of 
political  questions ;  as  the  general  tone  of  morals  is 
strengthened,  as  strengthened  it  is  by  all  these  influ- 
ences, —  parties  come  to  have  no  policy  but  to  get  into 
power,  or  to  keep  in  it,  for  the  sake  of  place  and 
patronage.  Practical  politics  is  thus  becoming  the 
art  of  managing  and  supporting  nominations;  and 
our  American  system  of  primary  nominating  assem- 
blies, by  which  the  voter  has  two  opportunities  of 
power,  one  at  the  caucus  and  one  at  the  polls, 


MODERN   GOVERNMENT  39 

seems  likely  to  spread  wherever  popular  election  is 
found,  and  to  find  equal  protection  from  law. 

It  often  proves  a  means  of  undue  minority  repre- 
sentation. The  nominees  ordinarily  gain  their  posi- 
tions by  a  slender  majority  of  their  own  party,  and 
are  opposed  by  the  whole  of  the  other.  Where  par- 
ties are  nearly  equal  in  numbers,  their  election,  there- 
fore, is  really  contrary  to  the  will  of  the  majority  of 
the  people,  though  a  sense  of  party  obligation  may 
give  them  the  votes  of  that  majority. 

And,  on  the  other  hand,  this  exposing  every  candi- 
date for  office  to  the  gantlet  of  two  votes,  one  of  his 
political  associates,  and  one  of  the  whole  people,  is  no 
slight  guaranty  that  men  notoriously  unfit  will  be 
either  set  aside  in  the  caucus  or  rejected  at  the  polls. 

As  some  barrier  to  the  demands  of  party,  those 
governments  where  it  is  strongest  have  taken  care 
that  their  lesser  functions  shall  be  performed  by  those 
who  have  some  special  fitness  and  training  for  it. 
This  training  may  be  done  by  the  government  or  by 
a  private  education,  but  in  either  case  some  pub- 
lic examination  is  the  test  of  its  success.  Offices 
are  no  longer  sold,  or  given.  That  "  public  office 
is  a  public  trust,"  all  governments  are  coming  to 
acknowledge. 

The  principles  of  modern  government  make  new 
nations  conservative,  and  unsettle  old  ones. 

In  no  country  in  the  world  is  property  as  secure  as 
it  is  with  us.  The  guaranties  of  our  Constitution 
have  intrenched  it  against  public  as  well  as  private 


40  THE   CENTENARY   OF 

attack.  The  British  Parliament,  during  the  last  half- 
century,  has  destroyed  vested  rights,  broken  up  titles, 
seized  private  property  for  private  use,  in  a  way  that 
to  an  American  seems  almost  revolutionary.  Such 
legislation  is  the  attempt  of  an  old  government  to 
adjust  itself  to  new  conditions  of  society,  by  the  use 
of  powers  that  belonged  to  its  old  conditions.  It  is 
putting  new  wine  into  old  bottles.  It  benefits  one 
class  and  spreads  a  feeling  of  insecurity  through  all. 

It  was  the  want  of  guaranties  against  acts  like  these 
that  kept  the  ratification  of  our  Federal  Constitution 
so  long  in  doubt.  Its  framers  guarded  the  people 
against  unequal  or  unjust  legislation  by  the  States, 
but  as  against  the  United  States  they  only  preserved 
the  writ  of  habeas  corpus,  ensured  trial  by  jury  in  pros- 
ecutions for  crime,  forbade  an  increase  of  penalty 
after  the  commission  of  the  act,  and  defined  the 
nature  and  consequences  of  treason. 

The  contrast  is  marked  between  these  scanty  securi- 
ties against  the  unknown  powers  of  the  new  govern- 
ment they  were  creating,  and  the  warm  declaration  of 
the  Rights  of  Man  that,  at  about  the  same  time,  came 
from  the  National  Assembly  of  France.  But  the  ideas 
of  '89  in  America,  were  not  the  ideas  of  '89  in  France. 
They  were  then,  where  we  were  in  '76,  thirteen  years 
before,  proclaiming  the  universal  rights  of  mankind. 
They  had  not  reached  the  consideration  of  the  par- 
ticular rights  and  privileges  best  suited  to  the  condi- 
tion of  their  own  people.  Or,  if  they  had  reached  it, 
they  were  not  ready  for  it. 

Our   Constitution,  therefore,  has  a  cold  and  un- 


MODERN   GOVERNMENT  41 

shapen  look  as  compared  with  those  which  France 
struck  off  in  rapid  succession  in  the  closing  years 
of  the  eighteenth  century.  This  was  one  of  the 
most  telling  arguments  of  those  who  opposed  its 
ratification. 

"  In  this  Constitution,"  said  Thomas  Tredwell,  in 
the  New  York  convention  of  1788,  "we  have  departed 
widely  from  the  principles  and  political  faith  of  '76, 
when  the  spirit  of  liberty  ran  high,  and  danger  put  a 
curb  on  ambition.  Here  we  find  no  security  for  the 
rights  of  individuals,  no  security  for  the  existence  of 
our  State  governments ;  here  is  no  Bill  of  Rights,  no 
proper  restriction  of  power;  our  lives,  our  property, 
and  our  consciences  are  left  wholly  at  the  mercy  of 
the  legislature,  and  the  powers  of  the  judiciary  may 
be  extended  to  any  degree  short  of  almighty."  1 

And,  in  truth,  the  people  everywhere,  with  a  truer 
instinct  than  their  leaders,  saw  with  surprise  that  the 
Bill  of  Rights  which  they  had  framed  into  every  State 
Constitution,  was  wanting  here.  They  gave  a  hesi- 
tating assent  to  the  new  scheme,  but  recommended, 
in  language  that  meant  command,  that  the  omission 
should  be  supplied,  and  supplied  at  once.  Congress 
obeyed,  and  the  first  ten  amendments  placed  the 
personal  rights  of  the  American  citizen  on  higher 
ground  than  those  then  or  now  belonging  to  any 
other  people. 

But  with  all  this  there  is  no  permanence  in  modern 
government.  In  its  fundamental  principles  there  is ; 
in  the  proper  adaptation  of  them  to  the  needs  of  each 

1  2  Elliott's  Debates,  p.  401. 


42  THE   CENTENARY   OF 

particular  community,  there  is  not,  and  there  never 
can  be. 

For  this  very  reason  it  cannot  fasten  on  the  East 

—  on  Asia  or  Africa  —  until  untold  generations  have 
passed  away.     Its  instability  is  radically  foreign  to 
their  national  ideas.     They  can  tolerate  revolutions 
of  dynasties,  but  not  of  laws. 

Japan  has  signalized  the  opening  years  of  the  sec- 
ond century  of  modern  government  by  the  promul- 
gation of  a  written  Constitution.  But  it  emanates 
from  a  single  hand,  which  retains  still  the  ultimate 
sovereignty,  as  an  hereditary  and  irrevocable  right, 
and  forbids  any  future  extension  or  alteration  of  its 
provisions,  unless  on  the  proposition  of  the  crown. 

The  first  centenary  of  modern  government  is  closed. 
When  the  second  is  attained,  this  country,  with  a 
population  now  exceeding  that  of  any  European 
power  but  Russia,  may  not  improbably  have  one  as 
large  as  all  of  them  combined.  It  will  have  had  new 
perils  to  meet,  a  larger  life  to  live,  a  greater  work 
to  do. 

Carlyle  has  said  that  the  true  bible  for  every 
nation  is  its  own  history.  If  so  it  be,  the  last 
books  must  be  better,  wiser,  truer,  than  the  first. 
There  must  be  a  new  testament  built  upon  the  old 

—  with  its  broader,  freer,  higher   life.      And   such, 
thank  God,  is  to  us,  thus  far,  our  bible  of  American 
history. 

We  have  taken  up  the  ideas  of  '89  and  advanced 
them.  We  have  taken  religious  freedom  from  the 


MODERN    GOVERNMENT  43 

national  Constitution,  and  put  it  into  our  State  Con- 
stitutions also.  We  have  widened  suffrage,  improved 
its  methods,  set  guards  to  the  power  of  the  majority. 
We  have  advanced  and  extended  public  education. 
We  have  been  loyal  to  our  institutions,  faithful  to 
our  laws,  —  each  of  us,  as  he  understood  them ;  and 
when  men  differed,  and  hesitated  in  their  allegiance 
between  State  and  nation,  by  the  strong  hand  of 
war  the  will  of  the  nation  was  lifted  into  acknowl- 
edged and  unchallenged  supremacy.  It  cost  much : 
years  of  angry  debate,  years  of  fierce  war,  hundreds 
of  thousands  of  lives  and  thousands  of  millions  of 
money ;  but  it  has  been  done,  and  there  are  few  to- 
day who,  if  they  could,  would  have  the  result  reversed. 

We  have  carried  human  charity  —  in  its  widest 
sense  —  farther  than  it  was  ever  pushed  in  any  age 
or  land  before.  We  have  struck  hands  with  other 
nations  in  honest  and  successful  efforts  to  make  the 
whole  world  better.  The  slave-trade  has  fallen  by 
our  aid.  International  arbitration,  in  the  place  of  war, 
has  had  its  noblest  illustrations  in  the  last  thirty  years 
of  American  history.  The  right  of  choosing  one's 
own  sovereign  —  of  voluntary  expatriation  —  we  have 
made,  throughout  the  earth,  free  to  every  man  who 
has  once  left  his  native  land.  The  project  of  a  code 
of  general  laws,  common  to  all  nations,  once  the 
mere  dream  of  poets,  has  been  put  in  form  by  an 
American,1  to  whose  labors  in  jurisprudence  the 
world  is  debtor,  and  is  now  under  serious  discussion 
by  the  jurists  of  every  civilized  country. 

1  David  Dudley  Field. 


44  MODERN   GOVERNMENT 

Washington,  in  his  inaugural  address,  a  hundred 
years  ago,  declared  that  "  the  destiny  of  the  republi- 
can model  of  government "  was  "justly  considered  as 
deeply  and  perhaps  finally  staked  on  the  experiment 
intrusted  to  the  hands  of  the  American  people." 
We  have  fulfilled  the  solemn  trust,  and  we  have  done 
more.  In  leading  the  way  towards  good  republican 
government,  we  have,  almost  unconsciously,  led  the 
way  too  toward  all  that  is  best  in  modern  govern- 
ment of  every  name.  The  great  kingdom  to  which 
we  once  belonged  is  the  better  because  we  struck 
for  independence,  and  has  been  glad  to  copy  both 
from  our  public  and  our  private  law.  The  influence 
of  our  institutions  is  felt  in  every  country  where  men 
read  and  think,  and  our  own  continent  has  been 
transformed  by  them  into  a  great  sisterhood  of  free 
governments,  each  resting  on  the  consent  of  its 
people  and  planned  only  to  promote  their  welfare. 


CHAPTER  III 

THE  FIRST  CENTURY'S  CHANGES  IN  OUR  STATE 
CONSTITUTIONS.1 

1779-1879 

THE  earlier  Constitutions  of  our  American  States 
were  generally  quite  similar  in  character. 
Their  aim  was  to  express  the  fundamental  principles 
of  civil  liberty  in  language  so  explicit  that  no  public 
officer  could  ever  pretend  to  misunderstand  them, 
and  to  distribute  all,  rather  than  to  withhold  any,  of 
the  powers  of  government. 

The  department  most  trusted  was  the  legislative, 
and  the  main  declarations  of  rights  were  meant  to 
guard  against  any  abuse  of  power  by  the  executive 
and  the  judiciary. 

Nor  may  we  forget  that  civil  liberty  in  1776  did  not 
mean  what  we  understand  by  it  to-day.  The  prevail- 
ing lines  of  thought  were  aristocratic.  Few  denied 
the  right  to  hold  men  in  slavery ;  fewer  still  supposed 
it  to  be  either  right  or  politic  that  every  American 
citizen  should  have  a  vote. 

The  first  Constitutions  were  hastily  put  together ; 
sometimes  by  a  revolutionary  convention  or  con- 
gress ;  sometimes  by  the  ordinary  legislative  assem- 

1  In  the  preparation  of  this  chapter  free  use  has  been  made  of  a 
paper  read  by  the  author  before  the  American  Social  Science  Associa- 
tion at  Saratoga,  September  n,  1879. 


46  THE   FIRST   CENTURY'S   CHANGES 

bly.  The  Declaration  of  Independence  found  the 
"  old  thirteen "  colonies  at  work,  as  John  Adams 
wrote  a  friend,  erecting  governments  "  as  fast  as  chil- 
dren build  cob-houses."  Most  of  them  were  not 
much  more  substantial.  They  lacked  the  necessary 
evidence  of  popular  assent.  Two  which  South  Caro- 
lina framed  before  1779,  one  by  a  provincial  congress, 
and  one  by  the  General  Assembly,  were  afterwards 
judicially  declared  by  the  Supreme  Court  of  that 
State  to  have  no  more  force  than  any  ordinary  stat- 
ute. If  any  of  these  so-called  Constitutions  of  first 
impression,  not  directly  authorized  or  ratified  by 
popular  vote,  had  greater  strength  or  endurance,  it 
is  because  they  were  accepted  by  general  acquies- 
cence, —  so  general  that  it  might  fairly  be  deemed 
universal. 

Massachusetts  and  Rhode  Island  alone  submitted 
theirs  to  the  people  for  approval,  each  in  1778,  and 
in  each  case  approval  was  refused.  Both  States  there- 
upon proceeded  to  provide  for  the  assemblage  of 
orderly  constitutional  conventions,  and  the  work  of 
these  bodies  was  ratified  in  due  course.  The  earliest 
true  Constitutions,  —  Constitutions  proceeding  imme- 
diately from  the  ultimate  depositary  of  sovereign 
power  —  were  those  of  Massachusetts,  adopted  in 
1780  and  still  in  force,  and  of  New  Hampshire, 
adopted  in  1784  and  replaced  by  a  better  six  years 
later. 

Connecticut  and  Rhode  Island,  with  the  aid  of  de- 
claratory statutes,  maintained  their  colonial  form  of 
government,  almost  unchanged,  until  far  into  the  next 
century. 


IN   OUR   STATE   CONSTITUTIONS  47 

The  earlier  Constitutions  were  made  for  a  homoge- 
neous people,  mainly  Protestants,  few  of  whom  were 
without  property,  or  in  want  of  remunerative  employ- 
ment. In  the  more  Southern  States,  particularly  in 
Pennsylvania,  Maryland,  Virginia,  and  South  Caro- 
lina, there  were  some  men  whose  fortunes  would  be 
deemed  large  even  at  the  present  day,  and  in  all  a 
considerable  deference  was  paid  to  family  position 
and  professional  rank. 

Under  the  influence  of  these  conditions,  suffrage 
was  generally,  and  office  often,  limited  to  certain 
classes  of  property  holders,  and  as  to  the  latter  some 
religious  test  was  also  imposed. 

These  restrictions  have  been  gradually  disappear- 
ing, though  four  States  still  require  the  voter  to  be  a 
taxpayer,  five  exclude  atheists  from  public  office,  and 
it  was  not  until  1877  that  New  Hampshire  admitted 
any  but  Protestants  to  her  legislature. 

There  were  few  amendments  to  any  of  our  Con- 
stitutions during  the  first  quarter  of  a  century.  Mary- 
land was  the  first  to  act  in  this  direction,  by  one 
adopted  in  1792,  to  exclude  members  of  Congress  from 
State  office  and  even  from  voting  for  State  senators. 

The  only  methods  originally  pursued  for  making 
an  amendment  were  (as  in  Maryland)  by  a  vote  of 
two  successive  legislatures,  or  by  calling  a  constitu- 
tional convention.  In  1818,  an  important  divergence 
from  this  policy  was  initiated  by  Connecticut,  which 
in  that  year  framed  her  first  (and  still  only)  Constitu- 
tion. It  was  largely  copied  from  that  adopted  by 
Mississippi  the  year  before,  but  instead  of  following 
her  by  allowing  the  legislature,  if  changes  were 


48  THE   FIRST   CENTURY'S   CHANGES 

needed,  to  call  a  constitutional  convention,  provided 
that  amendments  proposed  by  the  House  of  Rep- 
resentatives and  agreed  to  by  the  succeeding  legisla- 
ture should  become  part  of  the  Constitution,  if  rati- 
fied by  the  direct  vote  of  the  people  at  the  polls. 

This  was  simply  an  adherence  to  the  ancient  cus- 
tom of  the  commonwealth  in  its  colonial  days.  Its 
government  had  been  originally  constituted  by  an 
agreement  between  the  first  planters  known  as  the 
"Fundamental  Orders"  of  January  14,  I638-Q.1 
These  forbade  the  immediate  re-election  of  the  gov- 
ernor for  a  second  term.  In  consequence  of  this,  it 
became  the  custom  to  elect  the  governor  of  one  year 
to  be  the  deputy  governor  for  the  next,  and  vice 
versa.  As  the  first  term  of  Gov.  John  Winthrop,  Jr., 
however,  neared  its  close,  the  General  Assembly  pro- 
posed to  the  freemen  of  the  colony  to  remove  this 
restriction  on  re-eligibility,  and  ordered  the  secretary 
to  insert  the  proposition  in  his  next  warrant  for  the 
choice  of  representatives,  and  to  call  for  a  popular 
vote  upon  it.  This  was  accordingly  had,  and  resulted 
in  carrying  the  amendment,  restoring  for  the  future  a 
"  liberty  of  free  choice  yearly."  2 

This  early  action  of  the  freemen  of  Connecticut 
was  the  origin  of  the  modern  referendum,  rather  than, 
as  Borgeaud  in  his  work  on  American  Constitutions3 
has  it,  the  Constitution  of  1818  itself. 

1  Printed  in  Colonial  Records  of  Connecticut,  i.,  20. 

2  Papers  of  the  New  Haven  Colony  Historical  Society,  vol.  v., 
p.  182. 

8  L?  £tablissement  et  la  Revision  des  Constitutions  aux  £tats-Unis 
d'Amerique.  The  passage  is  quoted  in  Thayer's  "  Cases  on  Constitu- 
tional Law,"  221. 


IN    OUR   STATE   CONSTITUTIONS  49 

The  Swiss  put  this  method  of  legislation,  in  1874, 
to  a  use  quite  foreign  to  its  original  conception,  in 
making  it  applicable  to  any  law  which  30,000  citizens 
or  eight  cantons  might  disapprove.  The  maxim  Vox 
populi,  vox  Dei  justifies  taking  the  popular  verdict 
on  those  questions  only  which  are  of  universal  inter- 
est and  prime  importance,  questions  as  to  which  every 
man's  mind  is  or  ought  to  be  made  up  before  they  are 
brought  forward  for  decision  by  his  vote.  A  people 
who  feel  themselves  uninformed  as  to  the  merits  of 
any  measure  presented  to  them  for  final  action  will 
generally  vote  it  down.  Such  has  been  the  result  in 
practice  of  the  Swiss  referendum.1  Laws  of  the 
merest  detail  have  been  subjected  to  its  operation; 
among  others  one  granting  a  salary  of  $2,000  for  a 
secretary  of  legation  at  Washington.2  The  rules  of 
political  as  well  as  of  dramatic  art  pronounce  against 
resort  on  any  but  grand  occasions  to  the  ultimate 
tribunal  of  popular  sovereignty. 

"  Nee  dens  intersit  nisi  dignus  vindice  nodus." 

Until  the  Civil  War,  there  were  few  substantial 
changes  in  our  principles  of  constitutional  law,  other 
than  those  already  noted.  Such  as  there  were  tended 
to  lessen  the  legislative  power,  by  transferring  it  to 
the  people  or  imposing  absolute  prohibitions  against 
its  exercise  in  certain  directions.  Internal  improve- 
ments became  a  fruitful  source  of  action  in  the  latter 
direction;  so  did  the  grant  of  special  charters,  or 
special  privileges.  The  term  of  office  of  the  governor 

1  Moses,  on  "  Federal  Government  in  Switzerland/'  119. 

2  Winchester,  on  "  The  Swiss  Republic,"  167. 

4 


50  THE   FIRST   CENTURY'S   CHANGES 

was  prolonged  in  several  States,  and  his  election  was 
generally,  and  that  of  the  judges  often,  left  to  a  popu- 
lar vote.  Executive  councils  and  councils  of  revision 
or  censorship,  one  after  another  disappeared. 

The  new  Constitutions  or  amendments  to  Consti- 
tutions that  were  adopted  were  largely  intended  to 
secure  improvements  of  an  administrative  nature. 
There  were  new  schemes  for  the  composition  of  the 
legislature,  and  the  arrangement  of  electoral  districts. 
The  ballot  grew  in  favor.  Better  provision  was  made 
for  public  education. 

And  now  comes  that  which  breaks  the  history  of 
the  United  States  sharply  in  two.  The  "  irresistible 
conflict  "  between  two  philosophies  of  humanity,  two 
groups  of  States,  reached  its  final  issue. 

The  Civil  War  struck  slavery  out  of  American  gov- 
ernment ;  and  the  tendency,  which  had  been  strength- 
ening for  half  a  century,  to  make  suffrage  universal 
was  forced  upon  the  country,  irresistibly,  by  the  four- 
teenth and  fifteenth  amendments  to  the  Constitution 
of  the  United  States. 

But  the  war  did  more.  It  created  a  new  order  of 
ideas  in  the  business  world.  The  thousand  new  activ- 
ities and  enterprises  that  a  few  years  then  whirled 
into  life ;  the  sudden  rise  of  great  fortunes ;  the  neces- 
sary concentration  of  vast  capitals,  public  and  pri- 
vate ;  the  elevation  of  speculators  and  adventurers  of 
every  sort  to  the  command  of  millions  of  money, 
massed  together  in  the  service  of  corporations  ;  and, 
with  all,  that  kind  of  dizzy  glare  and  false  coloring  by 
which  social  ideas  are  always  confused  and  distorted 


IN   OUR   STATE   CONSTITUTIONS  51 

when  a  land  accustomed  to  laws  is  given  over  to  the 
rule  of  arms,  —  all  these  brought  new  men  and  new 
dangers  to  the  front. 

Statutes  struggled  against  them  in  vain;  and  the 
people  soon  saw  that  nothing  less  than  radical  changes 
in  their  civil  Constitutions  could  meet  the  evil.  They 
were  made,  and  it  is  to  the  aim  and  character  of  these 
that  we  must  look  for  the  great  alterations  thus  far 
made  in  our  system  of  governmental  law. 

The  first  century  of  American  life  under  Constitu- 
tions framed  by  sovereign  States  began  with  the  rati- 
fication by  the  people  of  Massachusetts  of  the  work 
.of  their  constitutional  convention  of  1779.  The  first 
Constitution  of  the  United  States,  the  Articles  of 
Confederation,  though  framed  by  the  Continental  Con- 
gress in  1778,  was  not  ratified  until  1781.  Massachu- 
setts was  the  pioneer  in  re-constituting  a  political 
sovereignty  by  the  free  consent,  formally  expressed, 
of  the  people  from  whom  it  proceeded,  and  for  whose 
benefit  it  was  to  be  exercised.  Her  Constitution  is 
the  Alpha  and  the  Omega  of  constitutional  law  for 
the  age  which  produced  it,  —  the  only  one  produced 
in  the  eighteenth  century  which  has  lived  through  the 
nineteenth. 

During  the  fifteen  years  between  1779  and  1794 
ten  State  Constitutions  were  adopted:  during  the 
fifteen  years  between  1864  and  1879,  thirty-seven.  In 
no  intermediate  period  of  the  same  length  had  any- 
thing approaching  the  latter  number  been  reached. 

The  first  century  of  our  constitutional  existence 
closed,  therefore,  at  a  period  of  exceptional  activity. 

This   was   the   work  of  the  politics   of  the  war. 


52  THE    FIRST   CENTURY'S   CHANGES 

During  its  progress  some  of  the  seceding  States,  when 
wholly  or  partly  reoccupied  by  the  national  forces, 
formed  temporary  Constitutions  to  meet  the  exigen- 
cies of  the  times.  On  the  restoration  of  peace  and 
the  adoption  of  the  reconstruction  policy,  which 
forced  negro  suffrage  upon  the  South,  other  frames 
of  government  were  required  by  the  party  in  power, 
and  were  wrung  from  the  people  as  the  price  of  rep- 
resentation in  Congress.  But,  this  representation 
once  obtained,  several  of  these  States  felt  that  they 
had  fettered  themselves  too  closely,  and  copied  with 
unnecessary  fidelity  their  Northern  models.  These, 
therefore,  abrogated  their  "  Reconstruction  "  Consti- 
tutions, and  formed  others,  better  suited  to  their 
tastes  —  perhaps  to  their  institutions. 

In  this  way  Alabama,  Arkansas,  Georgia,  and  Texas 
each  during  this  period  lived  under  four  different 
forms  of  government ;  and  most  of  the  other  Southern 
States  under  three. 

Each  of  these  changing  Constitutions,  however,  has 
naturally  had  a  considerable  influence  in  shaping  its 
successor.  North  Carolina,  for  instance,  began  the 
Preamble  to  her  Reconstruction  Constitution  of  1868 
thus :  "  We,  the  people  of  the  State  of  North  Caro- 
lina, grateful  to  Almighty  God,  the  Sovereign  Ruler 
of  nations,  for  the  preservation  of  the  American 
Union,  and  the  existence  of  our  civil,  political,  and 
religious  liberties ;  "  and  went  on  to  declare  "  That 
this  State  shall  ever  remain  a  member  of  the  Ameri- 
can Union ;  that  the  people  thereof  are  a  part  of  the 
American  nation ;  that  there  is  no  right  on  the  part 
of  the  State  to  secede."  Six  years  later,  when  in  full 


IN   OUR   STATE   CONSTITUTIONS  53 

and  unchallenged  possession  of  every  right  of  State- 
hood, she  adopted  a  new  Constitution,  but  the  Pre- 
amble and  the  Declaration  of  Rights  followed  to  the 
letter  the  same  language,  dictated  as  it  was  under 
circumstances  so  different. 

The  special  features  of  these  Constitutions  of  the 
"  reconstructed  States,"  in  immediate  relation  to  the 
war  or  the  negro  race,  have  lost  their  interest,  by 
reason  of  the  fourteenth  and  fifteenth  amendments 
to  the  Constitution  of  the  United  States,  and  the  pass- 
ing out  of  existence  of  the  Southern  freedmen  as  a 
separate  class.  But  they  dealt  also  with  the  whole 
field  of  politics,  and  in  common  with  those  adopted 
during  the  same  years  at  the  North  present  for  con- 
sideration certain  social  forces  unconnected  with  the 
current  politics  (as  we  generally  use  that  term)  of  the 
day,  which  before  the  close  of  its  first  century  had 
stamped  themselves  deeply  on  American  law  and  life. 

I  have  said  that,  in  our  earlier  history,  the  legisla- 
tive department  was  that  in  which  the  people  put 
most  trust.  It  was  of  the  people  that  our  Colonial 
Assemblies  were  composed ;  though  their  governors 
and  judges  might  be  appointed  by  the  crown  or 
raised  to  office  and  kept  there  by  the  influence  of 
wealth,  family,  or  education,  —  all  greater  powers  by 
far  in  American  politics  a  hundred  years  ago  than 
now.  And  it  was  the  inroads  of  the  British  ministry 
upon  the  peculiar  privileges  of  these  Assemblies,  I 
need  not  say,  that  brought  about  the  Revolution. 

But  this  generous  trust,  reposed  by  our  early  Con- 
stitutions in  the  State  legislatures,  was  abused.  The 


54  THE   FIRST   CENTURY'S   CHANGES 

watch  kept  over  them  in  colonial  days  by  royal 
governors,  Boards  of  Trade,  and  proprietary  inter- 
ests, was  withdrawn,  and  the  jealousy  which  over- 
threw these  had  supplied  nothing  adequate  to  fill 
their  place.  Reckless  mismanagement  of  the  public 
finances,  particularly  in  the  West  and  Southwest, 
soon  followed,  —  mismanagement  of  which  the  conse- 
quences were  often  not  developed  for  many  years. 
State  Banks  were  chartered,  and  their  bills  made 
receivable  for  taxes.  State  bonds  were  issued,  and 
the  proceeds  sunk  in  public  works,  yielding  no  re- 
turn. Special  privileges  were  granted  to  the  friends 
of  the  leaders  of  the  party  in  power :  trading  monop- 
olies; exemptions  from  taxation;  power  to  corpo- 
rate organizations  to  contract  on  a  mere  semblance 
of  capital;  statutes  designed  —  under  the  guise  of 
some  general  object  —  to  affect  a  particular  lawsuit 
pending  in  court.  Appointments  to  office  became 
more  and  more  engrossed  by  the  legislature,  and 
offices  themselves  were  needlessly  multiplied.  Mu- 
nicipal corporations  were  given  unnecessary  powers 
of  expenditure,  and  encouraged  to  lend  their  credit 
to  canal  or  railroad  enterprises,  which  were  only 
called  for  by  a  spirit  of  speculation.  It  seemed  as 
if  almost  any  legislation  had  only  to  be  asked,  to  be 
granted. 

A  day  of  reckoning  came.  The  disasters  culminat- 
ing in  the  panic  of  1837  gave  a  shock  to  American 
credit  abroad  from  which  it  has  never  yet  fully  re- 
covered, but  were  not  enough  to  wake  our  own 
people  to  a  sense  of  their  real  danger.  The  few  con- 
stitutional changes  that  it  produced  were  a  palliative 


IN   OUR  STATE   CONSTITUTIONS  55 

rather  than  a  preventive.  It  took  another  panic, 
twenty  years  later,  and,  more  than  this,  the  reaction 
since  the  Civil  War,  to  show  us  and  all  of  us  where 
that  danger  lay,  —  that  it  was  indeed  in  the  very  ark 
of  the  covenant;  that  those  we  had  most  trusted 
were  to  be  trusted  the  least. 

It  brought  on  at  last  a  new  order  of  things.  In 
the  Constitutions  and  constitutional  amendments 
soberly  framed  during  the  last  decade  of  the  cen- 
tury under  review,  we  see  a  wide  departure  from  the 
theories  of  government  so  long  and  so  unquestion- 
ingly  accepted  among  us. 

The  powers  of  the  Executive  are  enlarged ;  he  is 
given  the  power  to  pardon  crimes,  which  was  before 
intrusted  to  the  sympathies  of  a  mass-meeting  (for 
a  legislative  assembly,  put  to  this  use,  deserves  no 
better  name).  He  is  allowed  to  veto  one  or  more 
items  in  an  appropriation  bill,  and  yet  allow  the  rest 
to  become  a  law.  He  is  given  the  appointing  power 
as  to  important  offices,  and  is,  perhaps,  himself 
elected  for  two  or  four  years  instead  of  one. 

The  terms  of  office  of  the  judges  have  been  length- 
ened; their  jurisdiction  extended,  perhaps  to  par- 
dons, perhaps  to  claims  against  the  State,  or  to 
advising  as  to  the  validity  of  contemplated  legisla- 
tion ;  and  any  claim  of  judicial  power  by  the  legisla- 
ture, as  for  instance,  over  divorces,  or  contested 
elections,  or  testamentary  succession,  cut  off. 

But  while  in  general  the  judiciary  has  been  strength- 
ened, there  has  been  no  hesitation  in  checking  its 
authority  wherever  it  seemed  to  have  borne  too  hardly 
on  the  liberty  of  the  individual.  Thus  a  disposition 


56  THE   FIRST   CENTURY'S   CHANGES 

is  shown  to  limit  the  power  of  attachment  for  con- 
tempt; and  Louisiana  (1879)  provides,  in  favor  of 
witnesses,  for  the  protection  of  "  confidential  com- 
munications made  to  medical  men  by  their  patients." 
The  ancient  provision  in  our  original  Constitutions, 
that  justice  shall  be  administered  "without  sale,  de- 
nial, or  delay,"  has  been  found,  in  some  States,  to 
need  a  practical  exposition  of  its  meaning.  In  Geor- 
gia (1877)  tne  Supreme  Court  is  required  to  dispose 
of  every  case  by  the  second  term,  and  if  the  plaintiff 
in  error  be  not  prepared  for  argument  at  the  first 
term  ("unless  prevented  by  Providential  cause"), 
the  judgment  below  is  to  stand  affirmed.  California 
(1879)  requires  from  her  judges  every  quarter,  be- 
fore their  salaries  can  be  paid,  an  affidavit  that  no 
case  which  has  been  submitted  to  them  for  over 
ninety  days  remains  undecided. 

Inroads  upon  the  jury  system  have  commenced. 
Colorado  (1876)  gives  power  to  the  legislature  to 
abolish  grand  juries  and  to  reduce  the  panel,  in  civil 
causes,  to  any  number  less  than  twelve.  Texas 
(1876)  diminishes  the  grand  jury  to  twelve,  of  which 
nine  are  a  quorum;  and  allows  nine  jurors  in  civil 
causes,  and  in  prosecutions  for  misdemeanors,  to 
return  a  verdict.  California  (1879)  also  allows  ver- 
dicts of  nine  jurors  in  civil  causes.  Georgia  (1877) 
refuses  a  jury  trial  "  in  all  civil  cases  founded  on 
unconditional  contracts  in  writing,  where  an  issuable 
defence  is  not  filed,  under  oath  or  affirmation ;  "  re- 
quires two  verdicts  from  different  juries,  on  two  suc- 
cessive trials,  as  the  condition  of  a  divorce ;  and 
allows  juries  of  five  in  the  minor  courts.  North 


IN   OUR  STATE   CONSTITUTIONS  57 

Carolina  (1876),  though  repeating  her  declaration  of 
a  hundred  years  before,  in  her  original  Constitution, 
that  "  in  all  controversies  at  law  respecting  property, 
the  ancient  mode  of  trial  by  jury  is  one  of  the  best 
securities  of  the  rights  of  the  people,  and  ought  to 
remain  sacred  and  inviolable,"  proceeds  to  declare 
that  "  the  distinctions  between  actions  at  law  and 
suits  in  equity,  and  the  forms  of  all  such  actions  and 
suits,  shall  be  abolished."  This  simplification  of  judi- 
cial process,  while  a  thing  highly  desirable  in  itself, 
must,  thus  accomplished,  make  it  far  from  easy  in 
cases  involving  equitable  rights  to  determine  with 
precision  whether  a  trial  by  jury  may  be  demanded, 
and  it  will  become  less  easy  with  every  year,  as  the 
lapse  of  time  obscures  the  recollection  of  the  formal 
procedure,  under  the  common  law. 

While  most  of  these  changes  indicate  greater  trust 
in  the  wisdom  and  discretion  of  the  judiciary,  the 
legislative  department  has  been  the  subject  of  uni- 
versal attack.  The  chief  design  of  most  that  was 
done  in  constitution-making  for  the  last  ten  or  twenty 
years  of  the  century  under  consideration  was  to  re- 
duce the  field  of  statute  law,  and  withhold  from  it 
every  subject  which  it  is  not  necessary  to  concede. 

Special  legislation,  as  to  any  matters  which  a  gen- 
eral law  can  fairly  and  reasonably  cover,  was  prohib- 
ited. The  Pennsylvania  Constitution  of  1873  may  be 
taken  as  a  type  of  most  of  the  newer  ones  in  this  re- 
gard. It  specifies  about  thirty  classes  of  subjects  as 
to  which  it  forbids  the  passage  of  any  "  local  or  special 
law."  Among  them  we  find :  regulating  the  affairs 
of  municipalities,  or  chartering  any  particular  one; 


5  8  THE   FIRST   CENTURY'S   CHANGES 

changing  the  descent  of  property ;  regulating  judicial 
proceedings ;  remitting  penalties ;  exempting  from 
taxation ;  regulating  labor ;  and  chartering  private 
corporations.  And  when  local  or  special  laws  are 
necessary,  the  parties  applying  for  them  must  give 
public  notice,  first,  to  all  adversely  interested. 

Another  provision  commonly  found  is  that  "  no 
senator  or  representative  shall,  during  the  time  for 
which  he  shall  have  been  elected,  be  appointed  to 
any  civil  office  under  this  commonwealth."  This 
strikes  at  the  root  of  what  few  can  have  failed  to  ob- 
serve to  be  a  very  dangerous  kind  of  favoritism. 
Where  a  legislature  appoints  to  office,  it  seldom  fails 
to  have  among  its  own  members  applicants  for  every 
place,  and  a  natural  feeling  of  fellowship  speaks  power- 
fully in  their  favor.  It  is  hard,  also,  to  deny  your 
vote  to  a  man  whose  vote  you  may  want  for  some 
measure  to-morrow.  In  this  way,  where  the  legisla- 
ture appoints  the  judiciary,  men  from  among  its  own 
members  will  often  go  upon  the  bench,  who  would 
never  have  been  thought  of  for  the  position,  had  they 
been  in  private  life. 

Fourteen  States  originally  gave  the  appointment 
of  the  judges  to  the  legislature.  All  but  four  of  these 
(Connecticut,  Rhode  Island,  South  Carolina,  and 
Virginia)  became  satisfied  that  this  method  is  a  dan- 
gerous one,  and  discarded  it;  and  a  Constitutional 
amendment  to  the  same  effect,  emanating  from  the 
State  Bar  Association  of  Connecticut,  was  approved 
by  its  General  Assembly  in  1879,  and  ratified  by  the 
people  in  iSSo.1 

1  It  placed  the  power  of  nomination  in  the  hands  of  the  Governor. 


IN   OUR   STATE   CONSTITUTIONS  59 

Where  to  place  the  power  thus  taken  from  the 
legislature  has  proved  one  of  the  most  puzzling  ques- 
tions in  American  politics ;  but  the  general  drift  has 
been  towards  popular  elections.  Twenty-four  States 
followed  this  mode  in  1879,  only  eleven  of  which 
originally  adopted  it.  Thirteen  States,  at  first,  gave 
the  appointing  power  to  the  Governor,  either  alone 
or  with  the  concurrence  of  a  council  or  other  advisory 
body:  nine  States,  only,  then  vested  it  in  that  man- 

«ir.     A  Constitutional  amendment  proposed  by  the 
ew  York  Legislature,  in  1873,  to  return  to  this  plan 
—  the  original  mode  in  that  State  —  was  defeated  by 
a  popular  vote  of  nearly  three  to  one. 

The  feeling  seems  to  be,  not  that  the  people  can 
choose  more  wisely  than  the  legislature,  but  that 
they  will  choose  more  honestly.  A  few  years  before 
the  change  of  system  in  Connecticut,  a  letter  was 
incautiously  dropped  in  the  street,  in  Hartford,  which 
had  been  sent  by  one  member  of  the  General  Assem- 
bly to  another.  The  person  addressed  was  an  active 
friend  of  a  certain  candidate  for  judicial  honors,  and 
the  writer  was  desirous  of  the  place  of  State  Prison 
director.  Without  any  circumlocution  he  wrote: 
"  If  you  will  support  me  for  State  Prison  director,  I 
will  vote  for  your  man  for  Judge  of  the  Superior 
Court."  Such  bargains  ought  to  be,  not  merely  dis- 
graceful, but  impossible. 

It  is  easier  to  circumscribe  the  appointing  than  the 
removing  power.  An  amendment  to  the  New  Hamp- 
shire Constitution,  prohibiting  any  removal  from  office 
for  political  reasons  only,  was  sanctioned  by  the  legis- 


60  THE   FIRST   CENTURY'S   CHANGES 

lature,  but  defeated  before  the  people,  in  1877,  re- 
ceiving a  little  less  than  the  two-thirds  vote  required 
for  its  ratification. 

A  seat  in  the  Senate  of  the  United  States  has, 
since  the  Civil  War,  acquired  new  dignity,  with  the 
steady  increase  of  the  powers  conceded  to  the  general 
government.  Once  thought  inferior  in  position  to 
the  governor  of  his  State,  a  senator  now  occupies  a 
place  of  far  greater  consideration.  The  compositio^fc 
of  the  legislature  which  is  to  choose  one  is  a  subject 
of  special  interest  on  that  account.  At  every  stage  in 
the  nomination  and  election  of  its  members  the  friends 
of  the  leading  senatorial  candidates  take  an  active  part. 

Nebraska  in  1875  initiated  a  movement  which  has 
since  found  more  appropriate  expression  in  a  propo- 
sition to  amend  the  Constitution  of  the  United  States 
by  transferring  the  election  of  senators  from  the  leg- 
islature to  the  people.  The  Nebraska  plan  was  by 
an  amendment  of  her  own  Constitution,  authorizing  a 
law  to  the  effect  that  at  the  State  election  next  pre- 
ceding the  expiration  of  the  term  of  any  United 
States  Senator,  "  the  electors  may,  by  ballot,  express 
their  preference  for  some  person  for  the  office  of 
United  States  Senator."  Such  a  vote  would,  of 
course,  be  preceded  by  a  nomination  by  each  party 
at  a  State  convention,  —  a  nomination  which,  if  con- 
firmed by  the  electors,  the  majority  in  the  legislature 
could  not  venture  to  disregard.1 

1  Mr.  Schouler,  in  his  "  Constitutional  Studies  "  (p.  108,  note),  calls 
attention  to  the  fact  that  this  has  already  been  practically  tried,  with 
success,  more  than  once  in  Illinois. 


IN   OUR   STATE   CONSTITUTIONS  61 

Changes  have  been  found  necessary  in  the  mode  of 
transacting  legislative  business. 

The  right  to  call  for  the  yeas  and  nays  has  been 
extended.  In  Pennsylvania  they  can  be  demanded 
by  any  two  members  in  either  House. 

Great  trouble  had  arisen  from  the  passage  of  bills 
which  had  been  so  altered  by  insidious  amendments, 
after  leaving  the  committee,  as  to  destroy  their  origi- 
nal purpose,  —  perhaps  to  accomplish  the  contrary, 
while  the  title  might  remain  unchanged,  and,  like  false 
colors,  serve  only  to  mislead.  This  has  been  met  by 
provisions  that  no  bill  shall  be  so  altered  on  its  pas- 
sage as  to  change  its  purpose;  nor  voted  upon  until 
printed  as  amended ;  nor  unless  read,  at  length,  three 
times  on  as  many  different  days ;  and  that  the  vote 
on  every  amendment,  and  on  the  bill  itself,  must  be 
taken  by  yeas  and  nays,  and  the  result  show  a  major- 
ity of  all  the  members  of  each  House,  present  and 
absent,  in  its  favor;  also  that  no  bill,  except  general 
appropriation  bills,  shall  contain  more  than  one  sub- 
ject, which  shall  be  clearly  expressed  in  its  title. 

The  vote  upon  every  measure  must,  of  course, 
largely  be  governed  by  the  statements  of  the  chair- 
man of  the  committee,  or  other  member,  having  it  in 
charge.  But  it  seems  to  have  been  found  prudent  to 
trust  to  what  he  says  no  more  than  is  necessary  to 
secure  the  prompt  transaction  of  business.  If  the 
title  of  the  bill  truly  describes  its  only  purpose,  the 
most  ignorant  member  may  at  least  know  the  nature 
of  the  subject  under  consideration ;  and,  where  the 
bill  is  one  of  amendment,  he  is  aided  by  another  of 
these  new  safeguards,  —  that  so  much  of  the  old  law 


62  THE   FIRST   CENTURY'S   CHANGES 

as  is  amended  shall  be  printed,  at  length,  as  it  will 
read  in  its  amended  form. 

The  most  dangerous  bills  are  generally  hurried 
through  at  the  close  of  the  session,  when  there  is  no 
time  to  discuss  or  even  to  examine  them.  To  meet 
this  difficulty,  Arkansas  provided  in  her  Constitution 
of  1874  that  "  no  new  bills  shall  be  introduced  into 
either  House  during  the  last  three  days  of  the 
session." 

Corruption  in  elections  has  become  almost  as  fa- 
miliar in  some  parts  of  our  country  as  it  once  was  in 
England.  It  was  formerly  enough  for  the  members 
of  the  legislature  to  swear  fidelity  to  the  Constitutions 
of  the  State  and  the  United  States.  By  1879  our 
Constitutions  began  to  exact  a  further  oath  that  they 
had  not  paid  or  promised  anything  for  their  election, 
and  that  they  would  not  directly  or  indirectly  receive 
anything  to  influence  or  recompense  their  official 
acts.  Violation  of  this  oath  is  perjury,  —  that  is,  a 
State  prison  offence. 

Back  pay  and  extra  compensation  of  every  sort 
are  generally  forbidden.  Congress  in  1873  gave  a 
useful  object-lesson  on  that  subject. 

State  aid  or  gratuities,  except  for  military  services 
or  pensions;  loans  of  public  credit;   municipal  sub- 
scriptions or  guarantees  to  private  enterprises  or  local 
improvements ;    grants  to  religious  organizations,  — 
all  these  are  to  be  known  no  more. 

Great  Britain  has  found  it  necessary  to  guard 
against  profuse  expenditures  and  grants  by  her  colo- 


IN   OUR   STATE   CONSTITUTIONS  63 

nial  legislatures  by  measures  yet  more  stringent.  In 
the  Union  Act  creating  the  Dominion  of  Canada 
(1867)  it  is  provided  that  "  it  shall  not  be  lawful  for 
the  House  of  Commons  to  adopt  or  pass  any  vote, 
resolution,  address  or  bill  for  the  appropriation  of  any 
part  of  the  public  revenue,  or  of  any  tax  or  impost, 
to  any  purpose  that  has  not  been  first  recommended 
to  that  House  by  message  of  the  Governor  General  at 
the  same  session." 

The  Constitution  of  Louisiana  of  1879  prohibits  the 
contracting  of  any  State  indebtedness,  "  except  for 
the  purpose  of  repelling  invasion,  or  for  the  suppres- 
sion of  insurrection." 

In  the  last  (and  sixth)  Georgia  Constitution  (1877) 
"  lobbying  is  declared  to  be  a  crime."  No  definition 
of  the  offence  is  attempted,  and  I  fear  that  none  was 
necessary. 

Corporations  necessarily  form  the  greatest  subject 
of  legislation,  for  they  represent,  probably,  four-fifths 
of  the  wealth  and  industry  of  the  country,  apart  from 
lands  occupied  as  homesteads. 

When  the  first  State  Constitution  was  adopted, 
there  was  probably  not  one  business  corporation  with 
a  moneyed  capital  in  the  whole  country.  At  the  pres- 
ent time  there  must  be  fifty  thousand.  Their  general 
character  of  perpetuity,  and  the  limited  liability  of 
their  stockholders  in  case  of  insolvency,  fit  them  well 
for  the  demands  of  American  life.  But  the  energy 
and  persistence  with  which  they  concentrate  power, 
in  the  prosecution  of  new  enterprises,  are  no  less  irre- 
sistible when  directed  to  the  attainment  of  any  legis- 


64  THE   FIRST   CENTURY'S   CHANGES 

lation,  in  which  they  may  find  their  profit  Their 
directors  and  presidents  fill  our  senates,  and  their 
stockholders  and  employees  are  prominent  in  the 
lower  house.  Unless  the  Constitution  sets  up  some 
barrier,  there  are  few  favors  which  organizations  so 
powerful  can  seek  in  vain.  But  almost  all  corpora- 
tions of  the  same  class,  or  business  character,  can  be 
conducted  under  the  same  rules.  Instead  of  a  spe- 
cial charter  for  every  railroad  —  three-fourths  of  which 
must  be  a  mere  repetition  of  provisions  found  in  every 
other  —  the  modern  Constitution  makes  imperative 
the  adoption  of  the  plan  of  general  railroad  laws, 
under  which  any  set  of  men,  with  the  necessary  capi- 
tal to  build  a  new  road,  may  obtain  the  authority 
to  go  forward  with  the  work.  The  same  is  true  of 
banks ;  of  insurance  companies ;  of  manufacturing 
concerns.  Let  the  legislature  thus  lay  down  a  few 
general  limitations,  as  to  the  amount  of  capital,  the 
powers  that  may  not  be  exercised,  the  transfer  of 
shares,  inspection  by  State  officials,  and  annual  re- 
turns, and  a  thousand  corporations  may  organize 
themselves  in  a  year,  without  burdening  the  stat- 
ute books  with  useless  charters,  or  besieging  the 
State  house  with  requests  for  special  privileges  or 
concessions. 

In  constituting  the  capital  of  these  associations, 
watered  stock,  and  stock  issued  for  gratuities,  or 
otherwise  than  for  actual  value,  are  by  many  of  the 
later  Constitutions  made  void.  The  consolidation  of 
rival  railroads  or  canals  is  forbidden.  Railroad  rings 
are  prohibited;  so  are  free  passes. 


IN   OUR   STATE   CONSTITUTIONS  65 

The  right  of  legislatures  to  prescribe  the  maximum 
charges  for  freight  and  passenger  rates  on  railroads, 
affirmed  by  the  Supreme  Court  of  the  United  States 
in  the  "  Granger  Cases," l  has  been  made  a  duty  in 
several  of  the  States.  The  Constitution  of  California 
(1879)  went  a  step  farther,  in  assuming  to  prescribe 
what  servants  and  agents  corporations  might,  or  rather 
might  not,  employ.  It  laid  down  an  absolute  pro- 
hibition against  their  use  of  Chinese  labor.  This  — 
though  designed  as  an  attack  upon  the  employed 
rather  than  the  employer  —  was  rested  on  the  police 
power,  and  had  it  not  been  for  the  Fourteenth  Amend- 
ment to  the  Constitution  of  the  United  States,  would 
perhaps  have  been  defensible,  in  the  absence  of 
any  treaty  obligations  to  the  contrary,  on  the  same 
grounds  as  the  granger  railroad  laws. 

Corporations  are  mere  creatures  of  the  legislative 
power,  with  such  rights  and  franchises  only  as  the 
legislature  may  choose  to  concede,  and  these  —  if 
their  charters  are  drawn  in  the  usual  form  —  revo- 
cable at  pleasure.  They  are  not  citizens  of  the  State, 
or  of  the  United  States,  so  far  as  respects  the  consti- 
tutional guarantees  of  the  privileges  and  immunities 
of  citizens  of  either  government.  We  have  long  been 
familiar  with  laws  forbidding  the  employment  of 

1  Munn  v.  Illinois,  94  United  States  Reports,  113;  Chicago,  Bur- 
lington, and  Quincy  R.  R.  Co.  v.  Iowa,  ibid.  155.  This  right  has  since 
been  declared  to  be  limited  by  the  duty  of  the  State  to  respect 
vested  rights  and  the  obligation  of  contracts,  so  far  that  it  cannot 
impair  the  security  of  railroad  creditors  by  reducing  rates  below  a 
point  at  which  the  road  can  fairly  earn  the  interest  on  its  obligations. 
Reagan  v.  Farmers'  Loan  and  Trust  Co.,  154  United  States  Reports, 
362. 

5 


I 


66  THE   FIRST   CENTURY'S   CHANGES 

children,  under  a  certain  age,  in  mills.  Why  not, 
California  asked,  as  well  extend  the  exercise  of  the 
police  or  regulative  powers  of  the  State  so  as  to  ex- 
clude laborers  of  a  certain  race  or  country? 

The  courts,  however,  pronounced  against  this  pro- 
vision as  a  denial  of  that  equal  protection  of  the  laws 
which  the  Fourteenth  Amendment  guaranteed  to 
every  person  within  the  jurisdiction  of  a  State,  as  well 
as  an  infringement  of  the  Burlingame  treaty.1  The 
results  aimed  at  by  California  have  since  been  largely 
accomplished  through  Congressional  legislation. 

The  precedents  of  the  English  common  law  allowed 
no  compensation  to  be  recovered  from  one  who  had, 
either  wilfully  or  negligently,  been  the  cause  of  an- 
other's death.  For  this  —  so  contrary  to  the  dictates 
of  common-sense,  and  to  the  maxims  of  most  other 
civilized  and  uncivilized  nations  —  the  only  reason  to 
be  given  was  that  human  life  was  beyond  price,  and 
could  not  be  measured  by  money.  The  frequent 
losses  of  life  by  railway  and  steamboat  accidents  early 
led  to  statutes,  both  in  England  and  America,  giving 
a  right  to  compensation,  in  favor  of  the  family  of  the 
deceased.  The  corporations  most  interested  could 
not  prevent  the  passage  of  such  Acts,  but  they  did 
succeed,  generally,  in  limiting  the  right  of  recovery 
to  $5,000.  In  most  of  our  States,  therefore,  it  has 
been  cheaper  to  kill  a  man  outright  than  merely  to 
maim  him.  A  Massachusetts  physician,  whose  pro- 
fessional prospects  were  ruined  by  a  railway  accident, 
which  left  him  a  paralytic,  recovered  $39,000  dam- 

1  In  re  Parrott,  i  Federal  Reporter,  481. 


IN   OUR   STATE   CONSTITUTIONS  67 

ages  from  the  Eastern  Railroad.  Had  he  died  from 
the  shock,  I  presume  they  would  have  escaped  with 
$5,000.  The  Constitution  of  Pennsylvania  forbids 
any  law  fixing  the  limit  of  compensation  in  actions 
for  any  personal  injury.1 

No  charters  had  been  more  abused  —  particularly 
in  the  Southwest  —  than  those  of  banks.  Texas,  in 
her  Constitution  of  1876,  —  willing,  apparently,  to 
leave  this  business  to  be  regulated  exclusively  by  the 
United  States,  —  declares  that  "  No  corporate  body 
shall  hereafter  be  created,  renewed,  or  extended,  with 
banking  or  discounting  privileges."  New  Jersey,  a 
year  before,  had  provided  that  no  bank  charter  should 
be  passed,  or  amended,  except  by  a  vote  of  three-fifths 
of  all  the  members  elected,  in  each  house ;  and  that 
none  should  be  granted  for  more  than  twenty  years. 
Two  States,  which  had  suffered  much  from  failing 
banks,  Missouri  (1875)  and  Louisiana  (1879),  made  it 
a  crime  for  any  bank  officer  to  receive  deposits  or 
negotiate  loans  with  knowledge  that  the  institution 
was  insolvent.  California  makes  stockholders  in  every 
corporation  liable  to  its  creditors  to  an  amount  pro- 
portioned to  the  stock  owned  by  each,  and  gives  a 
remedy  against  the  directors  for  all  embezzlements 
by  officers  or  agents  of  their  appointment. 

We  all  know  how  frequently  corporations  are 
organized  to  do  business  in  another  State ;  and  as  a 
general  rule,  the  farther  they  go  from  home,  the  less 

1  That  of  New  York  adopted  twenty  years  later  contained  a 
similar  provision. 


68  THE   FIRST   CENTURY'S   CHANGES 

capital  they  carry,  and  the  less  morality  as  well. 
Most  of  the  mining  companies  in  Colorado  and 
Nevada  are  chartered  in  New  York  and  New  Eng- 
land. Their  capital  is  a  mining  right,  valued  at  a 
million  or  two,  and  worth,  probably,  less  than  noth- 
ing, because  it  involves  quite  an  outlay  to  find  out 
that  it  is  worthless.  Such  a  corporation,  organized  in 
New  York,  to  do  business  in  Connecticut,  was  finally 
wound  up  there  by  bankruptcy  proceedings.  It  had 
a  capital  of  $250,000,  all  paid  in,  on  paper;  but  when 
the  truth  came  out,  it  appeared  that  an  irresponsible 
man  had  given  his  own  note  for  $500  for  a  license  to 
dig  for  barytes  on  a  certain  farm,  for  99  years,  subject 
to  a  royalty  of  so  much  a  ton  for  all  he  got  out,  and 
that  the  stock  was  issued  to  the  maker  of  the  note,  as 
the  price  of  a  transfer  of  this  lease  or  license,  the  cor- 
poration assuming  the  payment  of  the  note  upon 
itself,  and  selling  enough  of  its  own  stock,  to  outside 
parties,  to  meet  it.  As  such  corporations  cannot  be 
sued,  ordinarily,  out  of  the  State  which  charters 
them,  our  new  Constitutions  provide  for  suing  them 
in  the  State  where  they  do  business. 

Most  of  our  Constitutions  have  referred  to  the  sub- 
ject of  taxation  with  some  such  general  declaration, 
only,  as  that  taxes  should  be  equal  and  uniform. 

California  was,  I  believe,  the  first  to  declare  in  terms 
that  all  property  must  be  taxed,  and  to  attempt  to 
describe  in  detail  the  items  of  which  property  may 
consist.  This  was  the  cause  of  much  of  the  opposi- 
tion to  the  ratification  of  her  Constitution,  but  I  fail 
to  see  how  these  provisions  go  farther  than  the 


IN   OUR  STATE   CONSTITUTIONS  69 

statutes  on  this  subject  under  which  many  of  our 
States  have  been  governed  for  centuries.  It  may  be 
unwise  to  elevate  such  a  rule  of  administration  — 
disapproved  by  so  many  economists  —  beyond  the 
reach  of  legislative  amendment  or  repeal,  but  it  is 
not  communism. 

In  one  respect  we  see  an  apparent  increase  of 
legislative  power,  or  dignity.  The  sessions  of  the 
legislature  are  generally  made  biennial,  thus  doubling 
the  terms  of  office  of  its  members.  There  are  but 
ten  of  the  States  which  have  not  moved  in  this  direc- 
tion. But  the  controlling  object  of  this  change  is  to 
lessen  legislation,  by  taking  away  half  its  opportun- 
ities. Though  the  representatives  are  elected  for  two 
years,  they  are  paid  for  but  one  year's  work,  and  are 
not  likely  to  do  more  at  their  own  expense. 

As  to  the  right  of  suffrage,  a  few  attempts  were 
made,  within  the  last  twenty  years  or  so  of  the  cen- 
tury under  review,  to  create  restrictions  in  the  way  of 
education,  or  tax-paying.  Pennsylvania,  Massachu- 
setts, Tennessee,  and  Georgia,  required  every  voter  to 
be  a  tax-payer.  A  similar  measure  was  submitted  to 
the  people  in  Maine  in  1878,  but  failed  of  adop- 
tion. Rhode  Island,  which  had  always  denied  suf- 
frage to  foreign-born  citizens  of  the  United  States, 
unless  they  owned  real  estate  to  the  value  of  $134, 
refused  in  1871,  by  an  emphatic  vote,  to  change  its 
policy.  Massachusetts  denies  a  vote  to  those  who 
cannot  read  and  write ;  Connecticut  to  those  who  can- 
not read. 


70  THE   FIRST   CENTURY'S   CHANGES 

Female  suffrage  in  school  elections,  coupled  with 
the  right  to  hold  office  on  school  boards,  was  author- 
ized in  Minnesota  in  1875.  Pennsylvania,  in  1873, 
made  women  eligible  to  any  office  of  control  or 
management  respecting  schools,  but  did  not  give 
them  the  right  to  vote.  Colorado,  in  1876,  authorized 
the  submission  to  the  people,  for  their  ratification,  of 
a  law  conceding  to  women  the  right  to  vote  (but  not 
to  hold  office)  at  all  elections,  on  the  same  terms  as 
men.  The  law  was  accordingly  framed  in  1877,  but 
was  rejected  by  a  large  majority. 

A  few  of  the  older  Constitutions  excluded  Roman 
Catholics  and  infidels  from  public  office.  New 
Hampshire  was  the  last  to  retain  this  religious  test, 
and  abolished  it  in  1877. 

The  great  object  of  all  laws  and  Constitutions  is  to 
guard  the  weak  and  protect  minorities. 

In  the  regulation  of  private  corporations,  several  of 
the  more  recent  Constitutions  provide  that  any 
stockholder  may  cumulate  his  votes  in  the  election 
of  directors ;  that  is,  if  he  has  ten  votes  to  give,  and 
there  are  five  directors  to  be  elected,  he  may  give 
ten  to  each  of  five  candidates,  or  fifty  to  one  candi- 
date, or  twenty-five  each  to  two  candidates. 

Illinois  extended  this  principle  to  her  State  elec- 
tions for  representatives  in  the  legislature.  Every 
district  sends  three,  and  every  elector  may  cumulate 
or  divide  his  three  votes  at  his  pleasure.  In  prac- 
tical operation,  the  scheme  is  charged  with  this  de- 
fect :  that  the  best  men  get  the  fewest  votes,  because 
every  one  thinks  that  they  are  sure  of  a  majority 


IN   OUR  STATE   CONSTITUTIONS  71 

without  his  aid;  while  the  more  ignorant  voter, 
unfamiliar  with  processes  of  calculation,  is  likely  to 
be,  more  than  ever,  the  mere  tool  of  the  party  man- 
agers. Its  friends,  however,  claim  [I  think  with 
reason]  that,  on  the  whole,  it  results  in  the  nomina- 
tion of  better  candidates,  as  well  as  in  a  fair  represen- 
tation of  the  represented. 

The  old  way  was  to  give  the  legislature  almost 
unlimited  power  as  to  the  canvass  of  elections.  It 
has  been  found,  however,  too  partisan  a  body  for  the 
task,  and  the  tendency  now  is  to  leave  such  questions 
to  the  courts,  and  to  ensure  an  honest  investigation 
there  by  numbering  the  ballots,  and  placing  on  each 
the  name  of  the  man  who  casts  it.  This  is,  in  sub- 
stance, the  mode  adopted  by  the  English  election  bill 
of  1872. 

The  impress  of  Northern  sentiments  on  the  South- 
ern mind,  as  to  matters  wholly  aside  from  politics  or 
sectional  differences,  we  find  strongly  marked  in 
several  of  the  recent  Constitutions. 

The  time  is  not  far  distant  when  the  custom  of 
duelling  was  a  general  social  law  in  the  Southern 
States.  But  in  every  one  of  them  it  was  by  1879 
restrained  by  a  Constitutional  provision. 

Louisiana  in  that  year,  which,  so  late  as  1864,  pro- 
vided in  her  Constitution  for  licenses  to  lottery-dealers 
and  gambling-houses,  after  prohibiting  lotteries  sub- 
sequently to  1895,  proceeded  to  say,  with  much  of 
the  old  Puritanic  commingling  of  the  notions  of 
crimes  and  sins,  "  Gambling  is  declared  to  be  a  vice, 


72  THE   FIRST   CENTURY'S   CHANGES 

and  the  General  Assembly  may  enact  laws  for  its 
suppression." 

Public  schools,  at  public  expense,  is  another  North- 
ern and  New  England  institution  which  planted  itself 
in  all  the  Southern  Constitutions  soon  after  the  war, 
less  perhaps  as  a  measure  of  expediency,  or  right, 
than  of  necessity,  in  view  of  the  extension  of  suffrage. 
Georgia  (1877)  expressly  confined  her  common-school 
instruction  to  "  the  elementary  branches  of  an  English 
education  only." 

North  Carolina,  in  1876,  provided  that  a  law  might 
be  made  compelling  every  child  between  six  and 
eighteen,  unless  otherwise  educated,  to  go  to  a  public 
school  for  at  least  sixteen  months.  Similar  legisla- 
tion was  long  ago  obtained  in  some  of  the  Eastern 
States,  without  the  aid  of  any  constitutional  provision. 

State  universities  are  becoming  more  common. 
Texas  (1876)  provided  that  "The  legislature  shall,  as 
soon  as  practicable,  establish,  organize,  and  provide 
for  the  maintenance,  support  and  direction  of  a  Uni- 
versity of  the  first-class,"  and  that  they  "  shall  also, 
when  deemed  practicable,  establish  and  provide  for 
the  maintenance  of  a  college  or  branch  University  for 
the  instruction  of  the  colored  youths  of  the  State." 
Georgia  provided  for  State  aid  to  the  University  of 
Georgia,  and  also  to  some  one  college  or  university 
for  persons  of  color.  Louisiana  ( 1 879)  directed  grants 
to  her  State  University  to  the  extent  of  not  over 
$10,000  a  year,  and  required  the  establishment  of  a 
university  for  persons  of  color,  and  an  annual  appro- 
priation of  not  less  than  $5,000  nor  over  $10,000,  for 
its  maintenance. 


IN   OUR   STATE   CONSTITUTIONS  73 

We  see  in  our  recent  Constitutions  a  general  ten- 
dency in  favor  of  the  debtor  class.  In  many  of  them 
imprisonment  for  debt  is  expressly  abolished,  except 
under  circumstances  of  fraud.  In  many,  the  legisla- 
ture is  enjoined  to  pass  "  liberal "  homestead  and  ex- 
emption laws,  or  else  these  exemptions  are  expressly 
defined  and  granted. 

So  far  as  such  provisions  take  away  the  remedy  of 
a  creditor  to  collect  pre-existing  debts,  the  Supreme 
Court  has  told  us  that  they  are  void;  but  as  to 
future  debts,  contracted  after  their  adoption,  the  ex- 
emptions are  effectual.  There  are  economists  who 
claim  that  society  should  afford  no  remedy  for  the 
collection  of  debts,  leaving  men  to  give  credit  at  their 
own  risk.  In  this  way,  it  is  argued,  trade  will  be 
healthy  and  unforced ;  rogues  must  work,  because 
no  one  will  trust  them;  prices  will  be  uniform,  be- 
cause the  profit  need  include  no  margin  for  bad 
debts ;  and  commercial  panics  will  be  unknown.  The 
exemption  laws  of  some  of  our  Southern  and  Western 
States,  which  secure  to  an  insolvent  debtor  his  farm 
and  stock,  his  furniture  and  library,  free  from  any 
claim  of  creditors,  will  go  far  to  demonstrate  the  truth 
or  falsity  of  these  positions. 

Texas  gave  unlimited  protection  to  every  wage- 
earner,  by  the  provision  in  her  Constitution  of  1876 
that  "  No  current  wages  for  personal  service  shall 
ever  be  subject  to  garnishment." 

Forbidding  taxation  by  municipalities,  or  even  by 
the  State,  beyond  a  certain  per  centum,  is  another 
bulwark  for  debtors  which  has  found  place  in  several 


i 


74  THE   FIRST   CENTURY'S   CHANGES 

of  the  recent  Constitutions.  Too  often  it  is  but  an 
indirect  way  of  commencing  or  enforcing  the  policy 
of  repudiation,  which  now  disgraces  the  records  of  so 
many  of  our  States.  Louisiana,  in  1874,  by  a  consti- 
tutional amendment,  sanctioning  a  legislative  Act, 
refunded  her  debt,  by  a  compulsory  process,  into  new 
consolidated  seven  per  cent  bonds,  for  sixty  per  cent 
of  the  amount  of  the  old  ones  ;  and  declared  the  new 
issue  to  be  a  valid  contract  "  which  the  State  shall  by 
no  means  and  in  no  wise  impair  ; "  and  that  to  secure 
the  levy  and  collection  of  the  taxes  required  to  meet 
the  interest  and  principal,  "  the  judicial  power  shall 
be  exercised  when  necessary ;  "  and  that  these  taxes 
should  be  annually  assessed  and  collected,  and  the 
payments  made,  without  any  further  legislative  appro- 
priation. But  in  July,  1879,  the  Constitutional  Con- 
vention framed  an  ordinance,  declaring  —  as  if  the 
State  were  the  creditor  instead  of  the  debtor  —  that 
the  interest  on  these  scaled  bonds  shall  "  be  and  is 
hereby  fixed  at  two  per  cent,  per  annum  for  five  years 
from  the  first  of  January,  1880;  three  per  cent,  per 
annum  for  fifteen  years,  and  four  per  cent,  per  annum 
thereafter ;  "  and  "  that  the  coupons  of  said  consol- 
idated bonds  falling  due  on  the  first  day  of  January, 
1880,  be  and  the  same  is  hereby  remitted,  and  any 
interest  tax  collected  to  meet  said  coupons  is  hereby 
transferred  to  defray  the  expenses  of  the  State  gov- 
ernment." 

The  rash  incurring  of  municipal  indebtedness  re- 
ceived a  check  in  Texas,  in  1876,  by  resort  to  a 
means  quite  opposed  to  the  usual  course  of  modern 
government.  The  Constitution  adopted  in  that  year 


IN   OUR   STATE   CONSTITUTIONS  75 

provides  that  while  all  qualified  electors  of  city  or 
town  can  vote  for  all  municipal  officers,  "  in  all  elec- 
tions to  determine  expenditure  of  money,  or  assump- 
tion of  debt,  those  only  shall  be  qualified  to  vote  who 
pay  taxes  on  property  in  said  city  or  incorporated 
town,  provided  that  no  poll  tax  for  the  payment  of 
debts  thus  incurred  shall  be  levied  upon  the  persons 
debarred  from  voting  in  relation  thereto."  New 
York,  two  years  later,  rejected  a  similar  proposition, 
recommended  by  a  commission  of  marked  ability, 
appointed  to  frame  a  general  law  for  the  government 
of  cities.1 

The  prohibition  of  the  liquor  saloon,  which  had 
been  decreed  by  statute  with  varying  success  before 
the  war,  by  several  States,  was  reinforced  by  the 
Constitution  of  Georgia  in  1877,  as  regards  sales 
within  two  miles  of  any  voting  precinct  on  the  day  of 
any  public  election. 

The  same  State  (1877)  protected  marriage  by 
making  it  the  condition  of  a  divorce  that  the  peti- 
tioner must  obtain  a  verdict  from  a  jury  in  his  favor 
at  two  different  terms  of  court. 

As  literary  productions,  many  of  the  more  recent 
Constitutions  compare  unfavorably  with  their  pre- 
decessors. 

They  are  more  wordy.  They  often  descend  into 
what  seems  a  pettiness  of  detail.  Some  are  so  hastily 
thrown  together  as  to  be  absolutely  slovenly.  In 
Louisiana,  for  instance,  —  a  State  whose  jurists  have 
always  been  noted  for  the  elegance  of  their  taste  and 

1  Hitchcock,  on  American  State  Constitutions,  28. 


76  THE   FIRST   CENTURY'S   CHANGES 

scholarship, — we  find  an  entire  article  repeated  and 
re-enacted,  word  for  word,  as  part  of  a  later  one. 

Occasionally  we  meet  a  section  which  for  its 
grandiloquence  of  expression  might  have  been  sug- 
gested by  the  Hon.  Elijah  Pogram.  Vices  of  style, 
however,  are  a  pardonable  fault  in  the  legislation  of  a 
country  where  the  administration  is  not  responsible 
for  the  form  of  statutes.  They  deface  the  laws  of  the 
United  States  to  an  extent  unequalled  by  anything  to 
be  found  in  all  our  State  Constitutions  put  together. 
The  Civil  Rights  Bill,  enacted  by  Congress  in  1875, 
for  instance,  commenced  with  a  preamble,  declaring 
that  it  is  "  the  appropriate  object  of  legislation  to 
enact  great,  fundamental  principles,  into  law,"  pre- 
cisely the  thing  which,  I  should  rather  say,  is  the  last 
object  of  legislative  enactment  in  a  free  government, 
because  they  are,  of  themselves  the  highest  law,  and 
the  very  touchstones  by  which  we  test  the  validity  of 
every  statute.  One  of  them,  indeed,  proved  fatal  to 
this  very  Act.1 

Texas,  as  has  been  said  already,  has  lived  to  wear 
out  three  Constitutions  and  take  on  a  fourth.  The 
first  (of  1845)  covers  sixteen  of  the  large  pages  of 
Poore's  "  Charters  and  Constitutions  "  ;  the  second 
(of  1866)  takes  a  page  more;  the  third  (of  1868)  ex- 
tends over  twenty-two  pages ;  and  that  adopted  in 
1876  occupies  thirty-two. 

The  Colorado  Constitution  of  the  same  year  was 
nearly  as  long. 

Both  these  States  illustrate  in  their  work  the  in- 

1  It  was  declared  invalid  by  the  Supreme  Court  of  the  United 
States,  in  the  Civil  Rights  Cases,  109  United  States  Reports,  3. 


IN   OUR  STATE   CONSTITUTIONS  77 

creasing  tendency  to  descend  to  the  details  of  govern- 
ment, and  tie  the  hands  of  the  legislature  at  every 
point  where  danger  can  be  anticipated  from  the  mis- 
use of  power.  Missouri,  until  1855,  had  imposed  but 
three  express  restrictions  upon  the  law-making  author- 
ity. By  1875  she  had  created  thirty-three.1 

There  is  a  point  beyond  which  it  is  unreasonable 
and  unsafe  to  carry  this  jealous  supervision  of  future 
legislatures.  The  great  principles  of  human  action 
vary  little,  but  their  application  to  the  affairs  of  daily 
life  changes  at  a  thousand  points  with  every  genera- 
tion and  every  decade.  Unquestionably  there  are 
many  superfluous  pages  in  the  long  drawn  out  Con- 
stitutions of  modern  date,  like  those  of  Texas,  Colo- 
rado, and  Georgia;  and  there  are  in  them  many 
articles  worse  than  superfluous. 

The  rule  of  Georgia,  for  instance,  that  costs  in  her 
Supreme  Court  shall  not  exceed  ten  dollars  until 
otherwise  provided  by  law,  and  that  a  poor  man  may 
appeal  to  it  without  liability  to  costs  at  all,  has  so 
flooded  it  with  petty  cases  that  there  is  scant  oppor- 
tunity to  hear  argument  on  any,  or  for  that  full  con- 
sultation in  all  before  judgment,  by  which  justice  is 
commonly  best  served. 

The  demagogue  has,  of  late  years,  too  often  found 
his  way  into  the  constitutional  convention.  We  have 
been  more  fortunate  in  escaping  the  influence  of  the 
political  theorist  and  doctrinaire. 

Here  and  there,  but  rarely,  we  observe  his  hand. 
Thus,  in  Alabama,  in  1867,  the  legislature  was 
1  Hitchcock,  on  American  State  Constitutions,  35. 


78  THE   FIRST   CENTURY'S   CHANGES 

directed  to  frame  "a  penal  code,  founded  on  prin- 
ciples of  reformation."  In  her  Constitution  of  1875 
this  section  disappeared. 

This  is  but  one  of  several  instances,  which  a  com- 
parison of  these  two  instruments  discloses,  of  that 
vacillating  spirit  which  grew  with  the  century,  and 
not  infrequently  led  the  constitutional  convention  of 
one  year  to  adopt  what  a  similar  body  in  another, 
not  very  distant,  would  discard.  In  the  Declaration 
of  Rights  in  the  Alabama  Constitutions  both  of  1865 
and  1867,  the  State  was  made  liable  to  suit  in  her 
own  courts:  in  that  of  1875  it  was  provided  that  she 
should  never  be  made  defendant  in  any  court  of  law 
or  equity.  The  last  Constitution  also  prohibited  for- 
ever the  imposition  of  any  educational  qualification 
for  suffrage.  A  few  years  later  public  sentiment 
changed  upon  this  point,  and  it  seems  probable  that 
before  long  Alabama  will  range  herself,  on  this  point, 
with  Mississippi  and  South  Carolina,  Massachusetts 
and  Connecticut. 

It  is  a  redeeming  feature  of  our  American  Consti- 
tutions that  they  deal  so  little  in  theoretical  and  un- 
settled questions  of  polity  or  jurisprudence.  We  can 
afford  to  experiment  in  our  statute  laws.  If  faulty  in 
operation,  they  are  easily  repealed  or  amended.  But 
our  Constitutions  should  present  no  principles  on 
which  men,  of  the  same  generation  at  least,  can  hon- 
estly differ  in  opinion;  none  which  are  within  the 
reach  of  ordinary  change. 

Such  was  certainly  their  original  scope  and  frame. 
The  many  recent  amendments  of  which  I  have 
spoken  are  the  witness  of  a  new  epoch.  The  times 


IN   OUR   STATE   CONSTITUTIONS  79 

have  changed,  and  Constitutions  have  changed  with 
them.  But,  as  we  compare  the  modifications  thus  in- 
troduced in  our  plans  of  internal  government  with 
those  of  the  other  great  powers  of  Christendom  dur- 
ing the  century,  we  shall  not  find  ourselves  the  great- 
est innovators.  Rather  may  we  take  an  honest  pride 
in  observing  how  few  steps  we  have  found  it  neces- 
sary to  retrace,  and  how  the  good  sense  and  good 
morals  of  our  people  have,  on  the  whole,  been  ade- 
quate to  keep  in  check  every  new  tendency  to  cor- 
ruption or  injustice. 


CHAPTER  IV 

ABSOLUTE  POWER,  AN  AMERICAN  INSTITUTION1 

THE  form  of  every  government  and  the  powers 
which  it  may  exercise  must  rest  either  on  the 
will  of  the  governing  authority  or  the  consent  of  those 
who  are  its  subjects.  Political  absolutism  may  be 
built  up  on  either  of  these  foundations.  It  exists 
whenever  those  who  are  governed  are  for  the  time 
under  the  dominion  of  a  power  which  they  cannot 
control,  and  which  knows  no  limits  but  those  of  per- 
sonal discretion. 

The  United  States  of  America  were  created  by  the 
consent  of  the  people  of  the  United  States.  They 
were  not  to  be,  however,  the  only  subjects  of  the  na- 
tionality which  they  thus  constituted.  They  had  the 
power  to  make,  and  they  did  make,  subjects  also  out 
of  certain  States,  previously  sovereign,  independent, 
and  self-governing.  The  people  of  each  State,  acting 
in  concert  with  the  people  of  all  the  rest,  transferred 
to  the  United  States  part  of  its  former  sovereignty, 
and  put  it  so  far  under  the  power  of  the  new  nation. 

This  power  was  limited  by  the  Constitution  of  the 
United  States,  for  the  time  being,  to  certain  matters 

1  In  discussing  this  topic,  free  use  has  been  made  of  addresses  de- 
livered by  the  author  before  the  Georgia  State  Bar  Association,  at 
Warm  Springs,  Georgia,  July  1,  1897,  and  the  American  Social 
Science  Association,  at  Saratoga,  N.  Y.,  Aug.  30,  1897. 


ABSOLUTE   POWER  81 

particularly  stated.  But  there  was  also  a  provision 
for  further  amendments  of  that  instrument,  by  which 
the  range  and  scope  of  federal  power  might  be  at  any 
time  enlarged.  It  could  never  be  extended  to  depriv- 
ing a  State  of  its  equal  representation  in  the  Senate, 
nor  for  twenty  years  could  it  be  exercised  to  suppress 
the  slave  trade.1  It  could  never  destroy  all  the  States, 
because  without  the  States  the  United  States  could 
not  exist.  It  probably  could  never  be  a  warrant  for 
dividing  or  consolidating  any  of  the  States,  without 
their  consent.2  It  may  also  be  assumed  that  the 
objects  of  the  Constitution  could  not  be  varied  from 
those  stated  in  its  preamble. 

But  aside  from  these  restrictions,  what  is  there  that 
an  amendment  of  the  Constitution  could  not  effect? 

Such  an  amendment  can  be  made  at  the  instance 
of  two-thirds  of  both  houses  of  Congress,  when  rati- 
fied by  the  legislatures  of  three-fourths  of  the  States ; 
and  however  obnoxious  it  may  be  to  the  interests  of 
the  rest,  it  will  be  as  to  all  alike  the  supreme  law  of 
the  land.  It  will  be  this  because  the  people  of  the 
United  States  in  1788  consented  that  what  was  then 
done  by  their  unanimous  assent  (manifested  by  the 
concurring  votes  of  their  appointed  organs,  the  con- 
stitutional conventions  in  each  State)  might  after- 
wards, at  any  time  and  from  time  to  time,  be  altered 
at  the  will  of  two-thirds  of  Congress  and  three-fourths 
of  the  State  legislatures.  They  freely  put  themselves 
under  the  absolute  control  of  these  depositaries  of 
the  amending  power;  for  to  them  had  been  univer- 

1  Constitution  of  the  United  States,  Art.  V. 

2  Ibid.,  Art.  IV.,  Sec.  3. 

6 


82  ABSOLUTE   POWER, 

sally  and  forever  granted  the  right  to  speak  for  the 
whole  people  of  the  United  States.  Thenceforth  that 
people  had  only  two  full,  self-acting  representatives 
in  their  system  of  government,  who  were  directly 
responsible  to  them  and  all  of  them.  One  was  the 
constitutional  convention,  to  which  the  people  of 
every  State  would  send  their  delegates,  for  the  pur- 
pose of  proposing  amendments.  This  was  to  be  con- 
voked only  on  the  application  of  the  legislatures  of 
two-thirds  of  the  States.  The  other  was  the  Presi- 
dent of  the  United  States. 

There  is  no  part  of  the  legislation  of  his  country 
that  is  not  of  interest  to  the  American,  but  he  is  most 
of  all  concerned  with  that  which  is  institutional  in 
character,  or  has  become  institutional  by  the  progress 
of  events.  Whatever  in  human  government  has  at- 
tained a  foothold  where  it  seems  to  belong,  and  from 
which  it  can  be  dislodged  by  no  ordinary  change,  has 
by  that  fact  alone  a  title  to  regard. 

Laws  may  be  passed  and  repealed  in  quick  succes- 
sion ;  individuals  may  rise  to  positions  of  command- 
ing influence,  only  to  be  swept  off  in  a  moment  into 
political  oblivion  by  a  sudden  turn  of  party  tide;  the 
rules  of  science,  the  inductions  of  philosophy,  ac- 
cepted for  ages,  may,  as  some  new  door  of  Nature's 
laboratory  is  unlocked,  shrivel  into  ashes  before  the 
issuing  flame ;  but  in  every  land,  civilized  or  barbaric, 
where  a  strong  race  has  long  made  its  home,  there 
will  be  certain  institutions  of  civil  society,  that  have 
grown  up  to  slow  maturity,  so  rooted  in  the  soil  that 
they  form  part  of  the  nation's  life  and  make  its  his- 


AN   AMERICAN    INSTITUTION  83 

tory.  Such  an  institution  a  century  of  use  has 
brought  into  being  for  Americans,  —  an  expression  of 
republican  principles  in  the  form  of  absolute  power. 

Among  the  constitutional  governments  now  exist- 
ing in  the  world,  the  United  States  rank  as  the  oldest 
but  one.  It  is,  indeed,  fairly  open  to  question  if 
our  place  is  not  the  first.  Great  Britain,  since  our 
Constitution  was  adopted,  by  her  union  with  Ireland 
and  the  introduction  of  a  hundred  Irish  members  into 
her  House  of  Commons,  followed  by  the  Reform 
Bill  and  the  recent  Franchise  Acts,  has  essentially 
changed  the  character  of  that  body,  and  transformed 
a  monarchy  into  a  representative  democracy;  while 
the  new  name  of  Empress  of  India  given  to  her  titu- 
lar sovereign  seems  but  to  mark  the  abandonment  of 
her  ancient  colonial  policy,  —  too  mild  for  an  oriental 
race,  too  rigorous  for  the  great  English-speaking 
dominions  that  have  risen  up  under  her  flag  to 
gain  for  themselves,  one  after  another,  substantial 
autonomy. 

The  United  States  are  the  offspring  of  a  long-past 
age.  A  hundred  years,  it  is  true,  have  scarcely  passed 
since  the  eighteenth  century  came  to  its  end,  but  no 
hundred  years  in  the  history  of  the  world  has  ever 
before  hurried  it  along  so  far  over  new  paths  and  into 
unknown  fields.  The  French  Revolution  and  the 
first  empire  were  the  bridge  between  two  periods  that 
nothing  less  than  the  remaking  of  European  society, 
the  recasting  of  European  politics,  could  have  brought 
so  near. 

But  back  to  this  eighteenth  century  must  we  go  to 


84  ABSOLUTE   POWER, 

learn  the  forces,  the  national  ideas,  the  political  the- 
ories, under  the  domination  of  which  the  Constitution 
of  the  United  States  was  framed  and  adopted".  There 
is  something  in  that  instrument  that  gave  it  coherence 
and  vitality;  something  on  which  we  have  built  up 
institutions  that  are  real,  traditions  that  are  imperious, 
a  national  life  that  is  organic,  a  national  history  of 
which  no  civilized  man  is  wholly  ignorant,  a  national 
power  that  is  respected  on  every  sea.  What  is  it  that 
has  brought  us  on  so  far,  and  given  us  an  undisputed 
place  among  the  great  powers  of  the  world?  Is  it  a 
broad  land  and  a  free  people,  equal  laws  and  univer- 
sal education  ?  Yes  ;  but  how  are  those  laws  admin- 
istered? How  are  the  forces  of  this  great  government 
that  rules  from  sea  to  sea  across  a  continent  directed 
and  applied?  How,  and  by  whom? 

I  think  it  may  be  fairly  said  that  of  the  leading 
powers  of  the  world,  two,  only,  in  our  time,  represent 
the  principle  of  political  absolutism,  and  enforce  it 
by  one  man's  hand.  They  are  Russia  and  the  United 
States. 

The  Czar  of  Russia,  indeed,  stands  for  Russia  in  a 
broader  sense  than  that  in  which  we  can  say  that  the 
President  of  the  United  States  stands  for  them.  The 
people  of  the  United  States  have  not  put  all  their 
power  in  the  keeping  of  all  or  any  of  their  temporary 
rulers.  They  are  the  sleeping  giant,  that  sleeping  or 
waking  is  a  giant  still.  Their  word  is  still  the  ultimate 
rule  of  conduct — their  written  word.  But  when  they 
gave  their  assent  to  the  Constitution  of  the  United 
States,  they  created  in  it  the  office  of  a  king,  without 
the  name. 


AN   AMERICAN   INSTITUTION  85 

They  set  the  key  also,  by  this  act,  for  our  State 
governments  and  municipal  governments. 

The  royal  prerogative  of  pardon,  which  belongs  to 
the  President  without  limits,  except  in  cases  of  im- 
peachment, has  been  given  to  one  after  another  of 
the  governors  of  our  States.  Their  appointing 
power  is  like  his;  their  veto  power  is  like  his.  Of 
the  statutes  passed  in  1897  by  the  legislature  of 
New  York,  nearly  one-third  —  in  all,  over  five  hun- 
dred—  failed  of  effect  for  want  of  the  Governor's 
approval. 

In  city  governments  the  authority  of  the  mayor 
has  been  continually  increased.  He  is  held  per- 
sonally responsible  for  a  fair  and  honest  administra- 
tion of  municipal  affairs,  and  each  department  under 
him  is  coming  to  be  under  the  direction,  not  of  some 
non-partisan  board,  but  of  one  man,  removable  at 
the  mayor's  will,  and  taking  his  instructions  from 
him. 

But  it  is  in  the  federal  government  that  political 
absolutism  is  most  deeply  seated.  Absolutism  natu- 
rally follows  centralization,  and  that  belongs  espe- 
cially to  the  nation. 

In  form,  at  least,  there  is  less  of  national  character 
in  our  executive  than  in  our  judicial  department. 
The  judges  of  the  United  States  have  no  relation 
to  the  States,  except  that  the  Senate  of  the  States 
must  confirm  their  nominations.  The  President,  on 
the  other  hand,  is  chosen  by  the  votes  of  local  elec- 
tors, appointed  by  each  State  for  itself,  and  meeting 
separately  in  distant  capitals.  Three  of  these  elec- 
toral votes  are  forever  secured  to  the  smallest  State, 


86  ABSOLUTE   POWER, 

so  that  a  President  may  be  —  as,  in  the  case  of 
Hayes,  a  President  was  —  elected  by  a  majority  in 
the  electoral  colleges,  when  the  opposing  candidate 
received  the  approval  of  a  majority  of  the  whole 
people.  So,  again,  should  the  electoral  colleges  fail 
to  make  a  choice,  the  States  come  together  to  take 
their  place,  like  so  many  sovereign  powers  in  an 
imperial  diet;  each  casting  in  the  House  of  Repre- 
sentatives an  equal  vote. 

But,  once  elected,  the  President,  during  half  the 
year,  is  the  United  States  more  truly  than  ever  Louis 
XIV.  was  France. 

Our  people  had  tried,  during  the  Revolution  and 
after  the  Revolution,  the  experiment  of  a  confed- 
eracy without  an  executive  head.  They  knew  the 
evils  of  a  weak  administration,  and  they  were  deter- 
mined to  have  an  energetic  one.  They  were  ready 
to  pay  the  price  by  submitting  to  a  system  of  per- 
sonal government. 

Had  there  not  been,  in  1787,  a  person  at  hand,  to 
whom  all  eyes  were  turned  with  unfaltering  trust,  it  is 
more  than  doubtful  whether  the  Constitution,  as  thus 
framed,  could  have  been  ratified.  Had  they  fully  un- 
derstood the  great  powers  with  which  it  invested  the 
President,  it  is  certain  that  it  never  would  have  been. 

Hamilton  and  Madison,  in  the  Federalist,  minimized 
these  powers  to  conciliate  popular  support.  It  was 
in  truth  impossible  to  predict  beforehand  what  they 
were  to  prove.  Pinckney,  at  the  close  of  the  con- 
vention, spoke  of  the  new  President  as  an  officer  of 
"  contemptible  weakness  and  dependence."  Jeffer- 
son, on  the  other  hand,  wrote  from  Paris  that  he 


AN   AMERICAN    INSTITUTION  87 

seemed  "  a  bad  edition  of  a  Polish  king,"  and  would 
contrive  to  hold  his  power  by  successive  re-elections 
for  life.  Between  these  views  time  was  to  decide. 

A  constitutional  government  is  not  constructed  in 
a  day.  A  constitution  may  be ;  but  it  is  born  into 
the  world  a  helpless  babe,  to  be  nurtured  and  re- 
created by  its  environment  and  associations.  Consti- 
tutions do  not  make  history.  History  makes  them. 
They  may,  indeed,  be  constructed  in  a  day,  but  they 
cannot  be  construed  in  a  day.  The  men  who  put 
such  a  document  together  do  not  know,  cannot  know, 
the  meaning  of  their  own  work.  It  is  what  it  comes 
to  be.  It  is  what  later  generations  make  it. 

Plato  tells  us  in  his  "  Republic"  that  governments 
must  change  with  every  change  in  the  character  of 
those  who  constitute  the  political  society,  and  in  their 
relative  conditions  of  life. 

If  we  think  of  the  United  States  as  they  were  in 
1787,  occupying  a  narrow  strip  of  the  Atlantic  sea- 
coast;  engaged  only  in  agriculture;  with  no  city 
larger  than  Utica  or  Savannah  now  is ;  with  capital 
still  so  far  in  the  hands  of  individuals  that  there  were 
probably  less  than  twenty  business  corporations  in  the 
whole  country;  with  mails  carried  through  half  the 
States  on  horseback  and  at  irregular  intervals,  if  at 
all,  —  all  must  agree  that  the  President  of  such  a  peo- 
ple could  not,  except  in  name,  be  the  same  as  the 
President  of  the  United  States  of  to-day. 

There  were  two  theories  of  the  executive  before  the 
convention  of  1787. 

Sherman  insisted  that  the  executive  magistracy  was 


88  ABSOLUTE   POWER, 

really  nothing  more  than  an  institution  for  carrying 
the  will  of  the  legislature  into  effect,  and  therefore 
that  it  should  be  confided  to  one  or  more  officials,  as 
experience  might  dictate,  appointed  by  that  body  and 
removable  by  that  body. 

Madison  contended  for  the  other  view,  that  the 
executive  was  a  representative  of  the  people,  rather 
than  of  their  legislators. 

During  the  century  that  has  passed  since  then 
England,  following  the  principle  preferred  by  Sher- 
man, has  reduced  her  sovereign  to  a  mere  representa- 
tive of  the  legislative  will;  and  we,  following  the 
principle  preferred  by  Madison,  have  raised  our 
executive  to  the  position  of  an  elective  king,  chosen 
by  the  people,  and  responsible  only  to  them,  —  a  king 
who,  for  a  four-years  term,  rules  in  his  own  right. 

One  of  the  most  significant  debates  in  the  conven- 
tion of  1787  was  that  over  the  proposition  to  surround 
the  President  with  an  executive  council.  Had  it  been 
carried,  and  his  will  thus  subjected  in  any  measure 
to  cabinet  control,  the  very  foundation  of  our  govern- 
ment would  have  been  changed.  It  is  the  absolute 
supremacy  of  the  President  within  his  sphere  of 
executive  action,  responsible  to  his  own  judgment 
and  to  no  other  man's,  that  has  been  the  mainspring 
of  our  political  system.  Custom  and  convenience 
have  brought  the  heads  of  departments  together,  in 
the  presence  of  the  President,  at  stated  meetings,  for 
consultation,  and,  when  he  asks  it,  for  advice.  We 
call  them  members  of  the  Cabinet;  but  they  have,  as 
such,  no  standing  before  the  law.  No  sultan  in  the 
presence  of  his  divan  is  as  uncontrolled  and  absolute 


AN   AMERICAN   INSTITUTION  89 

as  the  President  of  the  United  States  at  a  Cabinet 
meeting.     Others  may  talk ;  he,  only,  acts. 

It  was  an  observation  of  Sir  Henry  Maine,  that  the 
success  of  the  United  States  "  has  been  so  great  that 
men  have  almost  forgotten  that  if  the  whole  of  the 
known  experiments  of  mankind  in  government  be 
looked  at  together,  there  has  been  no  form  of  govern- 
ment so  unsuccessful  as  the  republican." 1  It  was 
unsuccessful  because  it  was  always  inefficient  in  emer- 
gencies ;  because  it  had  no  political  centre ;  because 
no  free  people  had  been  intelligent  enough  to  know 
that  a  strong  and  stable  government  is  the  best 
government,  provided  it  is  first  kept  within  narrow 
bounds,  and  then  administered  in  the  public  interest. 

The  first  step  towards  strengthening  the  executive 
power  was  taken  by  the  first  Congress  in  'its  decision 
in  favor  of  the  right  of  the  President  to  dismiss  his 
subordinates  at  will.  The  Federalist  had  adopted 
the  other  view.  The  argument  that  if  confirmation 
by  the  Senate  were  necessary  to  appointment  it  must 
also  be  necessary  to  removal,  was  logical;  but  in 
politics  practical  considerations  are  often  stronger 
than  logical  ones.  The  President  is  invested  with 
the  whole  executive  power  of  the  United  States.  He 
is  to  be  held  responsible  to  the  people  for  his  execu- 
tive action.  Justice  then  demands  that  he  should 
have  no  agent  in  his  service  who  has  lost  his  confi- 
dence ;  no  man  on  whose  judgment  he  must  rely,  yet 
whose  judgment  he  distrusts.  That  this  is  his  abso- 
lute right  may  now  be  considered  as  settled  law.2 

1  Popular  Government,  p.  202. 

2  Parsons  v.  The  United  States,  167  United  States  Reports,  324. 


9o  ABSOLUTE   POWER, 

In  the  form  of  constitution  adopted  by  the  Southern 
Confederacy  in  March,  1861,  the  President's  power 
of  removal  was  essentially  restricted.  It  should 
have  been;  for  the  guiding  principle  of  that  short- 
lived government  was  to  secure  at  every  point  where 
it  was  practicable  the  sovereignty  of  each  State, 
and  to  yield  as  little  as  possible  to  the  confederate 
authority. 

During  the  administration  of  Washington  came 
another  step  in  the  development  of  the  Constitution, 
in  the  act  on  his  part  which  nearly  precipitated  us 
into  a  war  with  France.  The  President,  by  the  Con- 
stitution, is  to  receive  public  ministers.  It  follows, 
said  the  first  President,  that  I  can  refuse  to  receive 
them,  or,  if  I  find  reason  to  be  dissatisfied  with  them, 
can  request  their  recall.  Genet  was  recalled,  at  his 
request,  and  the  beginning  thus  established  of  a  long 
line  of  diplomatic  precedent,  which  has  made  the 
voice  of  the  President,  as  to  foreign  nations,  the  only 
recognized  expression  of  the  sovereign  will  of  the 
United  States. 

Federal  taxation  was  no  more  popular  under  Wash- 
ington than  it  is  under  McKinley.  It  became  neces- 
sary for  the  government  to  show  its  teeth,  and  in  1 792 
was  passed  the  first  national  militia  law.  In  case  the 
execution  of  the  laws  of  the  United  States  should  be 
opposed  in  any  State  by  combinations  too  powerful 
to  be  suppressed  by  the  courts  or  marshals,  it  was 
made  lawful  for  the  President  to  call  out  the  militia 
of  the  State,  and  should  they  refuse  to  act  and  Con- 


AN   AMERICAN   INSTITUTION  91 

gress  not  be  in  session,  the  militia  of  other  States,  in 
such  numbers  as  he  might  think  necessary.  It  was 
also  provided  that  every  able-bodied  white  male 
citizen,  between  eighteen  and  forty-five,  with  few 
exemptions,  should  be  enrolled  in  the  militia,  and 
that  the  President  should  appoint  an  adjutant-general 
in  each  State  to  act  as  such,  subject  to  the  orders  of 
the  Governor.  It  was  by  virtue  of  these  acts  that 
Washington  found  the  means  to  put  down  the  Whis- 
key Rebellion  in  Pennsylvania ;  and  while  the  general 
policy  of  Congress  has  since  been  to  trench  less  on 
the  military  powers  of  the  States,  the  militia  of  the 
United  States,  such  as  it  is,  has  necessarily  and  always, 
when  in  actual  service,  been  under  the  command  of 
the  President  by  constitutional  right,  and  the  Supreme 
Court  have  decided  that  it  is  for  him  alone  to  deter- 
mine when  it  is  fit  to  call  them  out.1 

So,  in  regard  to  our  standing  military  and  naval 
establishment,  the  orders  of  the  President  are  always 
absolute. 

They  may  involve  the  pulling  down  or  setting  up 
the  government  of  a  State.  Such  was  the  effect  of 
Presidential  interposition  in  Dorr's  Rebellion  in  Rhode 
Island,  when  the  courts  declared2  that  whichever 
government  he  recognized  as  the  true  and  lawful  one, 
they  must  respect. 

They  may  bring  a  sudden  stop  to  combinations  of 
labor,  which  have  put  great  railroads  at  their  feet,  and 
the  commerce  of  the  country  in  peril. 

They  may  compromise  our  relations  with  foreign 

1  Martin  v.  Mott,  12  Wheaton's  Reports,  19. 

2  Luther  v.  Borden,  7  Howard's  Reports,  i. 


92  ABSOLUTE  POWER, 

powers,  and  even  authorize  an  invasion  of  foreign 
territory  or  the  blockade  of  ports  1  before  Congress 
has  declared  the  existence  of  war. 

And  when  a  state  of  war  is  fully  recognized,  what 
limits  can  be  assigned  of  the  executive  power?  As 
it  was  practically  administered  during  the  civil  war,  it 
extended,  in  States  that  were  not  the  seat  of  active 
hostilities,  to  domiciliary  visits ;  to  arrests  by  military 
warrant;  to  refusals  to  obey  writs  of  habeas  corpus 
issued  by  the  State  courts ;  to  trials  by  military  courts, 
ending  in  decrees  sometimes  of  exile,  and  sometimes 
of  death.  The  courts  and  the  bar,  were  at  the  time 
divided  in  opinion  as  to  the  question  of  right.  The 
Chief-Justice  of  the  United  States  denied  that  the 
President  could  suspend  the  privilege  of  the  writ  of 
habeas  corpus  where  there  had  been  no  proclamation 
of  martial  law ;  but  even  he  did  not  venture  to  enforce 
his  decision  by  process  of  contempt.  At  this  point 
Taney  yielded  before  Lincoln,  as  Marshall  had  yielded 
before  Jefferson  as  to  the  subpoena  issued  and  dis- 
obeyed on  the  trial  of  Aaron  Burr.  Finally,  after 
the  close  of  the  war,  came  the  decision  in  Milligan's 
Case,  annulling  a  sentence  of  death  passed  by  a  mili- 
tary commission,  sitting  in  Indiana,  for  a  political 
offence ;  but  a  decision  rendered  by  a  divided  court, 
four  of  the  nine  judges,  with  the  then  Chief-Justice  at 
their  head,  holding  that,  in  time  of  insurrection  or 
invasion,  the  President  might  rule  by  martial  law, 
when  public  danger  required  it  and  there  was  no 
opportunity  for  Congress  to  act,  in  any  part  of  the 
United  States,  though  not  the  actual  seat  of  war, 
1  The  Prize  Cases,  2  Black's  Reports,  635. 


AN   AMERICAN   INSTITUTION  93 

if  he  found  the  ordinary  law  inadequate  for  public 
protection.1 

It  was  Macaulay's  criticism  of  the  Constitution 
and  government  of  the  United  States  that  we  were 
"  all  sail  and  no  rudder."  He  uttered  it  in  the  first 
half  of  the  century,  that  half  divided  for  us  by  so 
wide  a  chasm  from  that  now  closing,  —  the  chasm  of 
the  Civil  War. 

No  one  who  watched  the  progress  of  that  great 
contest  would  have  failed  to  see  that  there  was  rud- 
der, no  less  than  sail.  There  was  a  rudder,  and  there 
was  but  one  man  at  the  helm.  Lincoln's  course  may 
be  commended  or  condemned,  but  this,  at  least,  all 
must  agree,  that  his  personality  dominated  the  course 
of  political  events  during  those  stirring  years  from 
1861  to  1865. 

It  was  far  from  being  a  consistent  course.  The 
Constitution,  on  his  accession  to  the  presidency,  did 
not  seem  to  him  the  same  thing  that  it  grew  in  his 
mind  to  be,  as  the  long  struggle  wore  on.  He  came 
to  feel,  as  he  wrote  in  1864,  "  that  measures,  other- 
wise unconstitutional,  might  become  lawful,  by  be- 
coming indispensable  to  the  preservation  of  the 
nation."  This  is  a  doctrine  without  limits,  in  the 
mouth  of  a  military  commander  in  time  of  war.  It 
led  him  to  the  proclamation  of  emancipation,  as  im- 
perial a  decree  as  that  by  which  the  Czar  of  Russia, 
in  the  same  year,  abolished  serfdom  in  his  dominions. 
We  need  not  stop  to  ask  whether  this  proclamation 
was  a  legal  act.  It  is  one  of  the  great  facts  of  human 
history ;  its  practical  consequences  were  immeasura- 

1  Ex  parte  Milligan,  4  Wallace's  Reports,  2,  142. 


94  ABSOLUTE   POWER, 

ble,  and  whatever  else  it  accomplished,  it  demon- 
strated the  absolute  power  of  an  American  President, 
whether  it  be  rightfully  or  wrongfully  exercised. 

The  observation  of  Macaulay  which  has  been 
quoted  was  written  not  long  after  the  hard-fought 
struggle,  with  its  varying  fortunes,  between  Jackson 
and  the  Senate  of  the  United  States.  As  late  as  1835 
the  Senate  had  successfully  opposed  his  will  in  a 
matter  which  it  was  thought  by  many  put  the  honor 
of  the  country  at  risk.  Our  relations  with  France 
had  become  strained  by  her  long  delay  in  paying  an 
agreed  debt.  In  President  Jackson's  annual  message 
at  the  opening  of  the  session  in  December,  1834,  he 
recommended  legislation  to  authorize  reprisal  by  the 
capture  of  French  vessels.  France  intimated  that 
she  was  entitled  to  an  apology  for  the  tone  of  the 
communication.  Jackson  replied  by  threatening  to 
recall  our  minister,  and  sent  in  a  special  message  to 
Congress,  in  which  preparation  for  war  was  suggested. 
Within  a  week  the  House  of  Representatives  voted 
an  appropriation  of  three  millions,  to  be  expended  in 
whole  or  in  part  under  the  direction  of  the  President 
of  the  United  States  for  the  public  defence,  should  it, 
in  his  opinion,  become  necessary  to  do  so,  before 
their  next  winter's  session.  The  Senate  refused  to 
concur.  The  general  voice  of  the  people  blamed 
their  caution,  but  Webster  subsequently  defended  his 
vote  against  the  measure  by  saying  on  the  floor  of 
the  Senate  that  as  for  him  he  would  agree  to  no  such 
proposition  were  the  guns  of  the  enemy  battering 
against  the  walls  of  the  capital,  and  that  he  had  been 


AN   AMERICAN   INSTITUTION  95 

amazed  at  the  action  of  the  house  in  "  rushing  with 
such  heedless,  headlong  trust,  such  impetuosity  of 
confidence,  into  the  arms  of  executive  power." 

The  growth  of  that  power  since  then,  and  its  growth 
since  the  Civil  War  as  well,  is  illustrated  by  the  very 
different  reception  given  in  1898  to  a  similar  sugges- 
tion, under  quite  similar  circumstances,  from  Presi- 
dent McKinley.  Without  a  special  message,  as  the 
result  of  a  private  interview  at  the  executive  mansion 
between  him  and  a  few  of  the  leaders  of  the  party  in 
power,  Congress  unanimously  put  fifty  millions  into 
his  hands,  to  be  expended  absolutely  at  his  will  for 
any  purposes  of  national  defence. 

But  it  is  not  to  times  of  war  or  of  rumors  of  war 
that  one  should  look  for  authoritative  definitions  of 
political  powers.  Those  of  every  department  of  gov- 
ernment are  then  commonly  strained  to  the  utmost, 
and  all  tend  to  support  the  military  arm. 

When  Lincoln  assumed  to  suspend  the  privilege 
of  Jiabeas  corpus,  Congress  came  to  his  aid  by  an 
Act *  formally  investing  him  with  such  a  power,  to  be 
exercised  anywhere  and  at  any  time  at  his  discre- 
tion, and  granting  immunity  for  any  acts  in  restraint 
of  liberty  done  at  his  command.  Similar  action  was 
taken  in  the  Confederate  Congress  to  strengthen  the 
hands  of  President  Davis,  and  his  influence  in  shap- 
ing legislation  was  even  more  evident  and  effective, 
throughout  the  war,  than  that  of  President  Lincoln 
at  Washington. 

Let  us  go  back  to  times  of  peace  and  ask  which 
President  was  the  first  to  startle  the  country  by  the 
l  Of  March  3, 1863. 


96  ABSOLUTE   POWER, 

exercise  of  powers  not  before  generally  thought  to 
appertain  to  the  Executive  Department. 

It  was  Jefferson,  when  in  1803  he  bought  the 
Louisiana  territory  from  Napoleon,  and  by  a  stroke 
of  his  pen  doubled  the  area  of  the  United  States. 
It  inevitably  moved  the  centre  of  political  rule  to  the 
valley  of  the  Mississippi.  It  destroyed  the  existing 
balance  of  power  between  the  States.  But  it  was  for- 
tunate that  under  our  political  system  there  was  one 
man  able  thus  to  commit  the  country,  without  con- 
sulting it,  to  so  great  a  departure  from  its  earlier 
traditions. 

A  generation  later,  another  executive  act  proved 
that  the  President  was  stronger  than  any  combination 
capital  could  form,  though  supported  by  far-reaching 
political  influences.  The  United  States  Bank  was 
the  greatest  financial  institution  which  the  United 
States  have  ever  seen.  It  had  paid  a  million  and  a 
half  to  the  government  for  its  charter.  It  was  made 
by  Act  of  Congress  the  standing  depository  of  the 
cash  funds  of  the  United  States,  unless  at  any  time 
the  Secretary  of  the  Treasury  should  order  their  with- 
drawal. President  Jackson  believed  that  the  affairs 
of  the  bank  were  being  improperly  conducted,  and 
requested  the  Secretary  of  the  Treasury  to  remove 
the  deposits.  The  Secretary  declined,  stating  that 
he  saw  no  reason  for  it,  and  that  the  authority  to 
decide  had  been  lodged  with  him.  His  removal  fol- 
lowed, and  a  successor  was  appointed  who  promptly 
complied  with  the  President's  wishes.  The  Senate 
denounced  Jackson's  action  as  unwarranted  by  the 
Constitution.  He  sent  in  a  protest  against  this  res- 


AN   AMERICAN   INSTITUTION  97 

olution,  which  they  voted  to  be  a  breach  of  privi- 
lege. A  commercial  crisis  followed,  which  shook 
the  country  to  its  foundation,  and  by  one  of  the  great 
parties  of  the  day  was  attributed  to  Jackson's  act. 
Whether  the  cause  of  it  or  not,  the  removal  of  the 
deposits  was  certainly  the  occasion,  and  it  came  by 
the  absolute  will  of  the  President  alone. 

It  was  Jackson,  also,  who  first  showed  the  people 
how  almost  irresistible,  in  strong  hands,  and  on  great 
occasions,  is  the  force  of  the  executive  veto.  It  is  the 
common  prerogative  of  royalty,  but  one  to  which 
modern  royalty  seldom  dares  to  resort.  Queen  Vic- 
toria has,  in  law,  the  same  absolute  veto  power  as  to- 
every  bill  which  Parliament  presents  to  her  for  the 
royal  assent  which  Queen  Elizabeth  or  William  the 
Conqueror  had.  But  does  she  use  it?  No  English 
sovereign  since  the  Hanoverian  dynasty  came  in  has 
ever  used  it,  and  none  ever  will.  It  has  fallen  into 
desuetude  because  it  is  an  absolute  power,  and  be- 
cause no  men  of  Anglo-Saxon  stock  will  ever  again 
stoop  to  absolute  power,  exercised  by  hereditary 
right. 

The  disuse  of  the  royal  veto  has  brought  on  a  silent 
but  fundamental  change  in  the  whole  system  of  Brit- 
ish government.  The  ministry,  unwilling  to  ask  the 
sovereign  to  approve  a  bill  that  they  do  not,  if  such  a 
measure  is  forced  upon  them,  resign  their  offices  or 
dissolve  the  Parliament.  As  the  Crown  cannot  be 
held  responsible  to  the  people,  the  ministry  must  be, 
—  a  vicarious  sacrifice  at  the  altar  of  liberty. 

In  every  form  of  government  that  stops  short  of 
despotism,  the  people  must  have  some  share  or  some 

7 


98  ABSOLUTE   POWER, 

semblance  of  a  share  in  legislation,  either  by  way  of 
origination  or  approval. 

In  the  palmiest  days  of  monarchy  in  France  the 
edicts  of  the  King  were  submitted  for  registration  to 
the  parliaments  of  justice;  and  the  convocation  of  the 
States  General  was  always  in  reserve.  Under  the 
reign  of  the  Caesars  the  absolutism  of  the  Emperor 
was  rested  on  the  assumption  that  the  people  had 
delegated  to  him  their  powers  and  the  functions  of 
their  tribunes  to  intervene  for  them  to  defeat  an 
unjust  law. 

But  the  American  veto  is  supported  by  no  legal 
fiction,  and  impeded  by  no  fear  of  popular  discontent. 
During  his  short  term  of  office,  and  because  of  his 
short  term  of  office,  the  President  of  the  United  States 
may  set  down  his  foot  at  any  point  and  oppose  his 
individual  will  to  the  judgment  of  the  whole  people, 
speaking  by  their  representatives,  and  of  all  the 
States,  speaking  by  their  ambassadors  in  the  Senate. 
If  such  a  veto  is  sent  in  during  the  closing  days  of  the 
session,  as  Congress  is  now  constituted,  with  so  great 
a  number  of  members  in  each  of  the  houses,  and  the 
opportunity  for  unlimited  discussion  in  one,  it  is 
almost  certain  to  be  fatal  to  the  bill ;  and  under  any 
circumstances  it  is  fatal,  if  the  President  and  Congress 
are  in  general  political  accord. 

But  if  they  are  not,  what  then?  He  has  a  greater 
prerogative  in  reserve. 

The  executive  power  of  the  United  States,  and  the 
whole  of  it,  is  vested  in  this  one  man.  What  are  laws, 
if  they  are  not  executed?  And  who  is  to  judge,  ex- 
cept the  President,  or  above  the  President,  whether 


AN   AMERICAN    INSTITUTION  99 

an  Act  of  Congress  which  he  is  called  upon  to  ex- 
ecute is  or  is  not  such  an  Act  as  Congress  had  power 
to  pass? 

We  have,  indeed,  now  passed  from  questions  of 
expediency  to  questions  of  jurisdiction. 

The  President  can  veto  a  bill  because  he  deems  it 
inexpedient,  or  because  he  deems  it  unconstitutional. 
He  can  only  decline  to  execute  a  statute  which  has 
become  such  without  his  approval,  because  he  be- 
lieves it  to  be  no  law  at  all.  But  the  absolute  power 
of  decision,  and  of  action  or  inaction,  in  either  case 
is  equally  in  him. 

This  was  the  position  of  Jefferson  and  of  Jackson, 
but  it  required  the  Civil  War  to  make  it  an  unques- 
tioned principle. 

At  its  close  society  was  confused  and  disorganized 
in  every  one  of  the  States  south  of  Kentucky.  The 
status  of  almost  half  the  population  had  been  revolu- 
tionized. The  natural  political  leaders  had  been  set 
aside.  A  general  readjustment  of  civil  government 
to  meet  all  these  new  social  conditions  was  necessary. 
President  Lincoln  and  after  him  President  Johnson 
proposed  to  accomplish  it  by  the  exercise  of  the  ex- 
ecutive power.  Temporary  governments  were  set  up 
under  military  authority.  Executive  orders  were 
issued,  authorizing  popular  elections,  under  certain 
conditions,  to  replace  military  by  civil  rule  and  home 
rule.  Congress  interposed  to  prevent  it.  The  "  Re- 
construction laws  "  were  enacted,  and  others,  such  as 
the  Tenure  of  Office  Act,  intended  to  subordinate  the 
President  of  the  United  States,  as  to  military  affairs, 
to  the  General  then  in  command,  and,  as  to  civil  ad- 


ioo  ABSOLUTE   POWER, 

ministration,  to  the  will  of  Congress.  Of  these  Acts 
some  were  so  incorporated  into  other  legislation  that 
they  secured  an  approval  under  protest.  Others  were 
returned  with  the  President's  disapproval,  strongly 
expressed.  They  were  passed  over  the  veto.  They 
were  treated  with  contempt.  The  Secretary  of  War 
was  removed  without  the  consent  of  the  Senate  and 
against  its  will.  A  great  party,  in  full  control  of  Con- 
gress, found  itself  hampered  and  thwarted  at  every 
step  by  one  man,  whom  they  had  selected  for  a  posi- 
tion of  little  authority,  and  the  accident  of  death  had 
elevated  to  the  highest. 

The  President  was  impeached.  His  answer  was,  in 
substance,  a  justification  of  the  acts  complained  of. 
He  was  accused,  not  only  of  disregarding  the  Tenure 
of  Office  Act,  but  of  having  stated  in  public  ad- 
dresses that  the  policy  manifested  in  the  Reconstruc- 
tion laws  led  in  the  direction  of  disunion  and  the 
permanent  disruption  of  the  States;  that  they  vio- 
lated the  fundamental  principles  of  the  government; 
and  that  they  tended  to  consolidation  and  despotism. 
He  avowed  these  opinions,  and  declared  that  they 
had  been  deliberately  formed,  and  rightfully  ex- 
pressed. He  was  prosecuted  and  defended  with  the 
greatest  ability.  The  trial  was  long.  It  was  followed 
in  every  part  of  the  country  and  of  the  civilized 
world  with  the  closest  attention.  A  judgment  of 
acquittal  came,  and  the  one  vote  that  saved  him  from 
conviction,  I  might  almost  say,  re-made  the  Constitu- 
tion of  the  United  States.  If  such  a  President  as 
Andrew  Johnson,  so  defiant  of  opposition,  so  abusive 
to  his  opponents,  so  distrusted  by  the  party  that  had 


AN   AMERICAN   INSTITUTION  101 

elected  him,  on  the  one  side,  and  by  the  party  which 
had  rejected  him,  on  the  other,  could  not  be  success- 
fully impeached  for  following  out,  and  to  the  end,  in 
matters  so  all-important  to  the  people  and  the  States, 
his  view  of  the  Constitution  against  that  of  Congress, 
no  President  ever  could  be. 

Up  to  that  hour  the  great  engine  of  impeachment 
and  removal  from  office,  left  in  the  hands  of  the  Con- 
gress and  the  Chief-Justice  of  the  United  States,  had 
been  looked  to  as  a  perpetual  guaranty  against  the 
undue  exercise  of  executive  power.  It  had  been 
thought  by  Madison  and  Pinckney  to  make  the 
President  too  dependent  on  the  favor  of  the  legisla- 
ture.1 The  test  of  use  was  applied,  and  it  had  fallen 
to  pieces  by  its  own  weight.  It  had  done  no  more 
than  give  the  President  a  new  forum  and  a  wider 
audience  for  the  proclamation  of  his  right  to  ad- 
minister and  defend  the  Constitution  as  he  might 
construe  it,  and  to  denounce  before  the  people  any 
legislation  that  he  might  deem  to  violate  its  principles. 

There  had  been  before,  on  one  great  occasion,  a 
difference  of  opinion,  strongly  pronounced,  as  to  his 
constitutional  duty,  between  the  President  and  the 
courts.  Jackson  declared,  when  he  vetoed  the  re- 
charter  of  the  United  States  Bank,  that  he  had  sworn 
to  support  the  Constitution  as  he,  not  others,  under- 
stood it,  and  that  the  authority  of  the  Supreme  Court 
must  not  be  permitted  to  control  either  Congress  or 
the  Executive  when  acting  in  their  legislative  capaci- 
ties. It  was  left  for  another  Tennessean,  in  another 

i  Elliott's  Debates,  v.  528. 


102  ABSOLUTE   POWER, 

generation,  to  vindicate  the  doctrine  that  the  Presi- 
dent was  equally  independent  of  the  courts  when 
acting  in  his  executive  capacity. 

Can  the  President  be  prevented  from  executing  an 
Act  of  Congress  which  the  Supreme  Court  considers 
to  be  unconstitutional  and  void? 

This  was  the  great  question  which  Mississippi 
brought  to  the  bar  of  the  Supreme  Court  of  the 
United  States  in  1866. 

The  Reconstruction  Acts  purported  to  set  aside  the 
existing  governments  of  certain  States,  —  govern- 
ments existing  by  the  authority  or  sanction  of  the 
President  as  commander-in-chief  of  the  military 
power  of  the  United  States.  Mississippi  was  one  of 
these.  She  asserted  that  these  statutes  were  uncon- 
stitutional and  void,  and  sought  leave  to  file  a  bill  for 
an  injunction  to  prevent  President  Johnson  from  un- 
dertaking to  enforce  them. 

No  one  would  have  been  better  pleased  than  he 
to  see  them  fail.  But  he  knew  that  it  was  his  duty  to 
defend  the  dignity  of  his  great  office.  By  his  direc- 
tion the  Attorney-General  opposed  the  motion  of  the 
State  of  Mississippi.  It  was  denied,  and  the  cause  of 
Mississippi  v.  Johnson  :  established  by  judicial  deci- 
sion what  had  been  only  feebly  and  sporadically 
claimed  by  Johnson's  predecessors,  that  the  President 
was  the  absolute  judge  of  his  duty  as  to  proceedings 
in  the  execution  of  a  statute,  subject  only  to  the 
power  of  the  courts  to  pass  upon  the  legal  effects  of 
his  action,  should  they  afterwards  become  proper 
matters  of  judicial  controversy. 

1  4  Wallace's  Reports,  475. 


AN   AMERICAN   INSTITUTION  103 

We  have  seen  how  far  the  military  powers  of  the 
Executive  may  serve  as  a  warrant  to  interfere  with 
the  administration  of  justice  in  State  courts.  In  time 
of  war  and  in  the  presence  of  war,  it  extends  to  their 
temporary  abolition.  When  enemies'  territory  is 
occupied,  or  territory  to  which  the  rules  of  public 
law  assign  that  name,  though  it  be  that  of  a  State  of 
the  Union,  the  President  can  replace  its  courts  by 
courts  of  his  own,  exercising  both  civil  and  criminal 
jurisdiction,  and  disposing  of  life,  liberty,  and  property, 
not  as  instruments  of  the  judicial  authority  of  the 
United  States,  but  as  instruments  of  the  executive 
authority. 

Such  was  President  Lincoln's  Provisional  Court, 
established  by  a  mere  military  order  in  Louisiana  in 
1862.  Four  years  later  Congress  ordered  its  records 
transferred  to  the  Circuit  Court  for  the  Eastern  Dis- 
trict of  the  State,  and  made  its  judgments,  in  legal 
effect,  the  judgments  of  that  court.  The  validity  of 
this  legislation  was  attacked,  but  it  was  finally  sup- 
ported by  the  Supreme  Court  of  the  United  States,1 
and  under  this  decision  in  the  case  of  The  Grapeshot, 
what  were  really  decrees  of  the  President,  speaking 
by  his  military  deputy,  the  judge  of  the  Provisional 
Court,  were  made  to  stand  for  and  virtually  become, 
by  legislative  action,  the  judgments  of  a  regularly 
constituted  judicial  tribunal,  which  could  only  have 
pronounced  them  by  virtue  of  its  judicial  powers. 

But  how  far,  in  time  of  absolute  peace,  can  the 
President  of  the  United  States,  in  the  exercise  of  his 

1   The  Grapeshoty  9  Wallace's  Reports,  129. 


104  ABSOLUTE   POWER, 

civil  authority,  interfere  with  the  police  of  a  State, 
and  set  aside  its  ordinary  course  of  justice?  Let 
Neagle's  Case,  which  arose  from  threats  of  violence 
against  Mr.  Justice  Field  of  the  Supreme  Court,  give 
the  answer.  The  President  can  surround  civil  officers 
of  the  United  States,  within  a  State,  with  armed 
guards,  who  can  defend  them,  even  to  the  death, , 
without  responsibility  to  the  State  whose  peace  may 
be  disturbed.  He  may  send  such  guards  in  the  train 
of  every  judge  upon  the  circuit,  and  however  they 
may  overstep  the  line  of  duty,  the  State  cannot  call 
them  to  account.  There  is,  says  the  Supreme  Court, 
a  peace  of  the  United  States  as  well  as  of  the  State, 
which  is  broken  by  an  attack  upon  such  an  officer, 
and  although  the  peace  of  the  State  be  also  broken 
by  the  defence,  this  can  be  determined  only  by  the 
courts  of  the  United  States.1 

I  have  spoken  of  the  President  as  the  sole  repre- 
sentative of  the  United  States  in  our  dealings  with 
foreign  nations,  except,  indeed,  that  the  ordinary  ex- 
ecutive prerogative  of  declaring  war  has  not  been 
confided  to  him.  If  he  cannot  declare  war,  however, 
he  can  create  one. 

Take,  for  instance,  his  power  to  which  I  have 
already  alluded,  of  receiving  foreign  ministers.  To 
receive  them  as  coming  from  what  foreign  sovereigns? 
From  such,  and  such  only,  as  he  may  choose  to  re- 
cognize as  sovereign.  From  Hawaii,  if  he  chooses  to 
recognize  the  Hawaiian  Republic.  From  Cuba,  if  he 
chooses  to  recognize  the  Cuban  Republic.  Such  an 

1  Neagle's  Case,  135  United  States  Reports,  I. 


AN   AMERICAN   INSTITUTION  105 

act  of  recognition  in  case  of  a  political  revolution 
that  has  obtained  temporary  success,  may  obviously 
constitute  a  casus  belli  in  favor  of  the  former  govern- 
ment. 

In  all  America  that  lies  south  of  us  we  have  long 
taken  an  especial  interest.  As  to  the  foreign  rela- 
tions of  our  sister  republics  there,  we  may  almost  say 
that  our  will  is  law;  and  our  will  is  uttered  by  our 
President. 

Let  one  of  these  republics  complain  to  him  of  en- 
croachments threatened  by  a  European  power.  It 
is  Mexico  struggling  to  free  herself  from  an  Austrian 
emperor  sent  and  supported  by  Louis  Napoleon.  At 
a  few  words, from  our  Department  of  State,  in  the 
name  of  President  Johnson,  the  French  troops  are  re- 
called, and  Maximilian  is  led  to  execution.  It  is 
Venezuela,  charging  England  with  pushing  too  far 
the  boundaries  of  British  Guiana.  A  sudden  mes- 
sage to  Congress  from  President  Cleveland  asks  for 
the  appointment  of  a  commission  to  aid  him  in  de- 
termining which  nation  is  in  the  right,  and  intimates 
that  if  Venezuela  proves  in  the  right  she  shall  have 
right  done.  In  an  hour,  by  this  executive  act,  we  are 
brought  face  to  face  with  a  question  of  war  with  the 
leading  power  in  Europe,  and  the  danger  of  it  passes 
away  through  a  diplomatic  correspondence,  for  the  issue 
of  which  the  President  was  again  alone  responsible. 

The  very  ground  of  our  interference  in  this  quarrel 
of  Venezuela  —  what  was  it  but  a  doctrine  proclaimed, 
and  indeed  invented,  by  a  President  of  the  United 
States?  The  Monroe  Doctrine  has  laid  down  the  law 


io6  ABSOLUTE   POWER, 

for  our  hemisphere,  and  it  was  the  single  act  of  the 
executive  department. 

Has  any  sovereign  in  Europe,  of  his  own  motion, 
ever  done  as  much?  There  was  some  reason  for  the 
remark  made  at  the  time  by  the  organ  of  the  French 
ministry,  that  it  had  been  "  reserved  for  Mr.  Monroe 
to  show  us  a  dictator  armed  with  a  right  of  superi- 
ority over  the  whole  of  the  New  World." 1 

The  place  of  the  President  in  our  government  was 
prepared  for  those  who  could  be  safely  trusted  with 
imperial  power —  for  ideal  heroes  of  the  nation  whom 
the  leaders  in  each  State,  chosen  by  the  people  for 
that  sole  purpose,  in  the  secret  conclave  of  the  elec- 
toral college,  might  agree  on,  —  must  agree  on,  —  for 
in  no  nation  at  any  time  can  there  be  more  than  one 
to  whom  all  true  men  look  as  the  foremost  citizen. 

The  framers  of  the  Constitution  sat  in  convention 
under  the  Presidency  of  such  a  hero.  It  was  for 
Washington  that  they  prepared  the  place  of  President 
of  the  new  republic.  It  was  by  such  as  Washington 
that  they  hoped  the  powers  of  this  great  office  would 
be  administered  when  he  should  fill  it  no  longer. 

Their  forecast  has  been  but  half  fulfilled.  The 
electoral  colleges  have  sunk  to  the  condition  of  so 
many  patent  voting-machines.  They  are  a  survival 
of  the  unfittest.  Human  government,  like  natural 
government,  is  administered,  in  the  long  run,  on  the 
principle  of  natural  selection ;  but  we  are  more  apt  to 

1  This  appeared  in  UEtoile,  the  journal  of  the  administration,  as 
soon  as  news  of  the  President's  message  reached  Paris.  See  McMas- 
ter's  "  Origin,  Meaning,  and  Application  of  the  Monroe  Doctrine  "  ; 
Notes,  p.  49. 


AN   AMERICAN   INSTITUTION  107 

change  the  substance  than  the  form  of  political  insti- 
tutions. England  has  slipped  into  a  republic  without 
knowing  it.  They  keep  their  Queen,  indeed,  and  are 
proud  of  her  reign  of  sixty  years,  but  she  is  little 
more  than  a  historical  curiosity.  Our  Presidential 
electors  were  brought  into  being  as  the  safest  and 
surest  way  of  declaring  the  will  of  the  people.  We 
have  found  a  better  way,  in  national  conventions  of 
great  parties  and  the  popular  verdict  upon  their 
work,  at  the  polls ;  but,  by  the  force  of  the  vis  inertia, 
we  still  cling  to  the  out-worn  form  of  the  electoral 
college.  The  tailors  persist  in  sewing  two  buttons  on 
the  backs  of  our  coats,  because  in  the  England  of  the 
Tudors,  when  all  travelling  was  done  on  horseback, 
one  had  to  button  back  the  skirts  of  his  riding  coat, 
to  keep  them  from  flapping  and  fraying  against  the 
saddle-bags.  The  tailor  is  the  despot  of  modern 
society,  —  he  still  insists  on  his  two  buttons,  though  we 
have  forgotten  their  use ;  and  so  the  electoral  colleges 
seem  destined  to  cling  to  the  skirts  of  the  Constitu- 
tion, simply  because  nobody  cares  to  take  the  trouble 
to  have  them  cut  off. 

Their  purpose  was  good,  but  it  has  become  an  im- 
possible one.  Only  a  great  war  can  give  us  again  a 
national  hero,  and  even  then  the  successful  General 
can  never  be  President  unless  he  be  formally  adopted 
as  the  candidate  of  a  great  party. 

The  successors  of  Washington  have  been  often 
weak  men,  —  never,  as  yet,  bad  men ;  but  it  is  hard  to 
name  more  than  three  of  them  who  can  in  any  sense 
be  termed  the  heroes  of  the  nation.  The  great 
powers,  however,  are  always  there,  if  the  great  man  is 


io8  ABSOLUTE   POWER, 

not;  and   every  generation  has   made  them  powers 
greater  still. 

Time  has  also  brought  a  greater  permanence  to 
them. 

Thrones  are  allowed  to  descend  by  hereditary  suc- 
cession because  it  is  believed  that  the  son  is  most 
likely  to  follow  the  policy  of  the  father,  and  to  resem- 
ble him  in  character. 

The  election  of  our  Vice-President  is  arranged  with 
a  similar  view;  but  for  a  hundred  years  the  vacancy 
that  might  occur  by  the  event  of  his  death  was  left  by 
our  laws  to  be  filled  by  officers  chosen  by  one  or  the 
other  house  of  Congress.  What  might  have  been 
expected  finally  happened.  A  Vice-President  be- 
came President,  and  the  legislative  officer  next  in  suc- 
cession was  of  a  different  political  party.  It  was  a 
time  of  deep  party  feeling,  and  there  was  serious 
danger  that  the  President  might  be  pushed  from  his 
place  to  make  room  for  a  representative  of  widely 
different  views ;  coming  into  power,  perhaps,  by  his 
own  vote  as  a  member  of  a  Court  of  Impeachment. 
Twenty  years  later,  when  passion  had  had  time  to 
cool,  a  wiser  law  was  enacted,  under  which  the  Presi- 
dent, in  such  a  case,  names,  in  effect,  his  own  suc- 
cessor, and  so  secures  the  continuance  of  the  same 
policy  until  the  people  have  had  another  opportunity 
to  declare  their  will. 

Aristotle  said  that  the  principle  or  spirit  of  two 
governments  widely  different  in  political  form  might 
be  the  same. 


AN   AMERICAN   INSTITUTION  109 

The  principle  of  despotism  may  exist  in  any  gov- 
ernment. It  may  dominate  in  a  democracy.  It  does 
when  the  popular  majority  legislates  at  will  on 
matters  of  individual  liberty  or  property.  Despotism 
was  never  more  terrible  than  in  the  hands  of  the 
people  in  the  French  Revolution. 

We  need  not  be  surprised,  therefore,  that,  beginning 
in  1787  by  granting  our  President  more  extensive 
powers  than  the  chief  magistrate  in  any  democratic 
confederation  had  ever  received  before  in  times  of 
peace, l  we  have  finally  drifted  into  a  kind  of  modified 
constitutional  despotism.  It  was  the  logical  outcome 
of  our  attempt  to  unite  in  one  government  the  form 
of  a  confederation  and  the  principle  of  a  nation.  If 
sovereign  States  were  to  be  kept  within  the  limits 
which  the  Constitution  set,  it  must  be  by  something 
in  the  nature  of  a  sovereign  power  that  was  even 
greater  than  they.  The  people  of  the  United  States 
are  greater  than  any  or  all  of  the  United  States,  but 
they  cannot  meet  together,  and  none  to  represent 
them  can  meet  together,  save  in  the  extraordinary 
and  yet  unknown  event  of  a  second  national  constitu- 
tional convention.  They  must  therefore  speak  by 
the  chief  magistrate  of  the  republic ;  and  so  has  come 
his  transcendent  power. 

I  have  compared  that  power  with  the  authority 
exercised  in  his  dominions  by  the  Czar  of  Russia. 
It  has  become  a  political  aphorism  that  Russia  is 
governed  by  despotism  tempered  by  assassination. 
Enhance  human  power  to  a  certain  point,  and  it  be- 
comes to  some  men  intolerable.  As  we  look  back 

1  2  Woolsey's  "  Political  Science,"  258.      ' 


no  ABSOLUTE   POWER, 

on  the  dagger  of  Booth,  and  the  sic  semper  tyrannis 
with  which  he  struck  home  his  blow;  at  the  shot  of 
a  disappointed  office-seeker  that  cost  the  life  of 
President  Garfield,  —  we  cannot  but  feel  that  there 
are  fanatics  in  America  also,  who  proceed  by  the 
methods  of  fanatics,  and  are  actuated  by  the  blind 
impulse  of  destruction  in  the  presence  of  political 
absolutism. 

But  such  men  are  few.  There  is  despotism  in 
American  government ;  but  all  who  look  at  it  with 
open  eyes  and  honest  hearts  know  that  it  is  despotism 
in  reserve  and  despotism  in  division.  Russia  would 
centre  absolute  power  once  and  forever  in  a  single 
man.  We  part  it  for  administrative  purposes  between 
three  departments  of  government,  and  however  great 
the  share  of  the  executive  may  be,  it  is  still  kept 
within  limits,  and  held,  at  most,  only  for  eight  years. 
I  say  for  eight,  because  American  tradition  has  made 
a  third  term  impossible. 

Our  ultimate  despot  is  the  people  of  the  United 
States ;  but  they  are  the  knights  in  armor  that  from 
generation  to  generation  may  slumber  in  the  en- 
chanted chambers  of  the  eternal  hills.  They  lay 
down  to  rest  when  a  declaration  of  tfreir  rights  had 
been  added  to  the  Constitution  of  the  United  States 
by  its  first  ten  amendments  in  the  third  year  of 
Washington's  administration.  They  rose  to  action 
for  a  moment  when,  three  years  later,  they  found 
that  their  ministers  of  justice  had  so  far  misunder- 
stood their  meaning  as  to  hold  a  sovereign  State  sub- 
ject to  the  federal  jurisdiction,  at  the  suit  of  a  private 
individual.  Again,  at  the  beginning  of  this  century, 


AN   AMERICAN    INSTITUTION  in 

they  awoke,  when  party  machinery  had  so  far  con- 
trolled personal  patriotism  that  Aaron  Burr  had 
almost  been  seated  in  the  place  which  they  designed 
for  Thomas  Jefferson. 

A  longer  period  of  inaction  followed,  till  the  time 
came  to  proclaim  by  law,  what  had  been  before  only 
asserted  by  the  sword,  that  slavery  had  become  in- 
compatible with  free  institutions.  But  the  long  war 
that  made  freedom  national,  had  done  much  more. 
It  had  struck  at  States.  It  had  conquered  States.  It 
had  borne  down  with  its  strong  hand  barrier  after 
barrier  set  by  former  generations  to  guard  that  vast 
and  indefinable  domain  of  rights  "  reserved  to  the 
States  respectively,  or  to  the  people."  It  had  brought 
into  existence  a  new  class  of  persons,  a  great  class ; 
utterly  unfitted  to  their  new  position;  surrounded  by 
those  who  had  been  their  masters,  distant  from  those 
who  had  been  their  liberators. 

Two  great  things  remained  to  be  accomplished. 
These  millions  of  slaves,  new-born  into  freedom,  must 
be  protected  in  it,  or  given  some  means  of  self- 
protection  ;  and  these  new  relations  of  the  States  to 
the  United  States,  of  the  old  States  to  the  new  nation, 
must  be  more  definitely  marked  and  secured. 

Again  the  knights  in  armor  stirred  in  the  enchanted 
chamber.  The  Fourteenth  Amendment  succeeded 
the  Thirteenth ;  the  Fifteenth  soon  followed,  and  the 
chapter  of  the  Civil  War  was  closed. 

But  the  freedom  of  the  slave  was  the  least  of  its 
political  consequences.  These  three  amendments  of 
the  Constitution  readjusted  and  reset  our  whole 
system  of  fundamental  law. 


ii2  ABSOLUTE    POWER, 

Down  to  1868  each  State  had  said  for  herself,  My 
people  shall  be  free  from  arbitrary  arrests;  their 
liberty  and  property  shall  be  secure;  their  rights 
equal ;  the  law  impartially  administered ;  the  stranger 
within  my  gates  protected  from  wrong  as  fully  as 
my  own  sons.  Now  came  back  for  a  brief  moment 
to  the  scene  of  action  the  people  of  the  United 
States,  to  say,  by  the  Fourteenth  Amendment,  that 
thenceforth  every  man  should  have  their  guaranty 
that  the  State  would  not  recede  from  these  obliga- 
tions, but  they  should  forever  be  the  foundation- 
stones  of  American  institutions. 

We  well  know  that  this  great  change  was  not  a 
welcome  one  to  the  whole  people.  Only  absolute 
power,  the  absolute  power  of  a  three-fourths  vote  of 
the  States  under  a  written  Constitution  —  the  absolute 
power  of  a  two-thirds  vote  of  Congress,  with  the  ab- 
solute right  in  each  of  its  houses  to  determine  as  to 
the  qualifications  of  its  own  members  and  the  admis- 
sion of  members  from  any  recalcitrant  State,  —  with 
the  right  to  pack  the  jury  even,  by  admitting  to 
statehood  a  row  of  mining  camps  on  barren  moun- 
tains, and  giving  to  Nevada  an  equal  vote  with  Vir- 
ginia or  Massachusetts,  —  this  is  what  forced  the 
Fourteenth,  if  not  the  Thirteenth,  Amendment  into 
our  organic  law. 

But  there  it  is.  It  was  a  slight  matter  that  it 
hastened  the  day  of  negro  suffrage,  and  paved  the 
way  for  the  Fifteenth  Amendment,  passed  two  years 
later.  Whenever  and  wherever  the  American  negro 
has  education  enough  to  enable  him  to  cast  an  intel- 
ligent vote,  he  will  cast  that  vote,  and  he  ought  to 


AN   AMERICAN   INSTITUTION  113 

cast  it.  And  whenever  and  wherever  he  has  not 
such  education,  he  ought  not  to  vote,  and,  in  the 
long  run,  he  will  not  vote.  Mississippi  and  South 
Carolina  have  put  themselves  upon  solid  ground  in 
saying  that  education  must  be  a  condition  of  suffrage. 
It  is  no  new  doctrine.  In  the  North  there  is  more 
than  one  State  in  which  such  has  been  the  law  for 
nearly  half  a  century. 

The  great  change  wrought  by  the  Fourteenth 
Amendment  has  been  to  concede  and  perpetuate  to 
the  United  States  vast  and  far-reaching  national 
powers ;  to  unify  and  centralize  their  government,  for 
good  or  ill. 

It  has  been  said  that  the  ideals  of  the  Teutonic 
race  have  been  in  perpetual  vibration  from  one  pe- 
riod to  another,  as  the  pendulum  of  time  swung  to 
and  fro  across  the  ages,  between  two  social  forces  — 
Individualism  and  Collectivism;  between  the  cry  of 
each  man  for  himself,  sauve  qui peut,  and  the  broader 
note  of  each  for  all. 

If  absolute  power  has  risen  up  in  the  United  States, 
and  for  the  United  States,  during  this  century,  to  a 
height  our  fathers  never  contemplated,  it  is  because 
we  have  departed  from  our  Anglo-Saxon  inheritance 
of  Individualism ;  because  the  people  demand  more 
of  their  government,  and  have  given  it  more.  When 
Coleridge  declared  that  — 

"  We  receive  but  what  we  give, 
And  in  our  life  alone  does  nature  live," 

he  spoke  what  is,  above  all  things,  true  of  free  institu- 
tions. For  each  of  them,  the  individual  citizen  has 

8 


ii4  ABSOLUTE   POWER, 

parted  with  something.  They  are  the  great  result  of 
a  common  contribution ;  and  whatever  they  give  back 
we  who  receive  have  paid  for,  are  paying  for,  whether 
we  recognize  it  or  not 

It  was  Collectivism  that  wrote  the  Fourteenth 
Amendment ;  Collectivism  that  ratified  it ;  Collectiv- 
ism that  enforces  it.  It  protects  individual  rights,  as 
in  no  land  were  they  ever,  in  any  age,  protected  be- 
fore. But  this  is  only  by  the  sacrifice  of  other  rights 
of  Individualism;  only  by  extension  of  the  sov- 
ereignty of  the  Union  at  the  cost  of  the  sovereignty 
of  the  State;  only  by  giving  to  the  courts  new 
authority  to  control  legislatures,  and  Congress  new 
power  to  control  the  citizen ;  only  by  giving  to  the 
President  new  laws  to  execute,  of  such  a  kind  as  put 
him  forward  into  fields  before  unoccupied. 

Nor  is  it  to  be  forgotten  that  when,  by  some  such 
great  act  as  this,  the  people  have  changed  their  gov- 
ernment, it  is  for  the  executive  power  to  proclaim  the 
change,  and  so  to  give  it  its  necessary  consummation. 
It  is  for  the  Secretary  of  State,  as  the  representative 
of  the  President,  to  notify  the  country  of  the  adop- 
tion of  every  constitutional  amendment.1  Then,  and 
not  until  then,  does  it  become  the  supreme  law  of  the 
land.  His  signature  is  wanting  to  make  it  such,  and 
is  sufficient  to  make  it  such.2  Who  but  he  is  to 
decide  whether  the  requisite  number  of  States  have 
given  it  their  votes?  Who  but  he  is  to  say  what  are 
the  States  having  the  right  to  vote?  Who  but  he  is 

1  Act  of  1818  :  Revised  Statutes  of  the  United  States,  §  205. 

2  See  the  remarks  of  the  Supreme  Court  of  the  United  States  in 
Virginia  v.  West  Virginia,  n  Wallace's  Reports,  62. 


AN   AMERICAN    INSTITUTION  115 

to  say  whether  a  State  which  has  once  voted  to  ratify 
an  amendment  can  reconsider  its  action? 

All  these  questions  were  presented  by  the  pro- 
ceedings upon  the  Fourteenth  and  Fifteenth  Amend- 
ments ;  and  some  of  them  were  necessarily  involved 
in  determining  as  to  the  adoption  of  every  preceding 
one. 

The  common  practice  has  been  for  the  Secretary 
of  State  to  issue  in  each  case  a  certificate  stating  that 
he  has  received  due  proof  of  ratification  by  a  certain 
number  of  States,  that  these  constituted  three-fourths 
of  the  whole  number,  and  that  the  amendment  "  has 
become  valid  to  all  intents  and  purposes,  as  part  of 
the  Constitution  of  the  United  States."  He  acts  in 
this,  of  course,  as  an  executive  officer,  responsible  to 
the  President  for  what  he  does  and  what  he  does  not 
do.  Until  this  certificate  is  issued  (unless  Congress 
is  in  session  and  intervenes),  the  Constitution  re- 
mains as  it  was.  The  President  may  direct  the  Sec- 
retary to  delay  its  issue.  He  may  differ  with  him  as 
to  whether  the  necessary  conditions  of  ratification 
have  been  fulfilled,  and  if  so,  he  might  remove  him 
from  office,  and,  as  Jackson  did  in  his  contest  with 
the  Bank  of  the  United  States,  when  Duane  was 
succeeded  by  Taney  as  Secretary  of  the  Treasury, 
replace  a  refractory  by  a  submissive  agent. 

Such  is  the  great  office  around  which  modern  re- 
publicanism has  built  up  its  government  on  American 
soil. 

In  the  impeachment  trial  of  Andrew  Johnson,  one 
of  the  managers  of  the  prosecution  described  the 


n6  ABSOLUTE   POWER 

President  as  nothing  but  "  the  constable  of  Congress." 
Had  that  impeachment  been  successful,  the  contemp- 
tuous taunt  might  have  seemed  simple  truth.  It  was 
not  successful,  because  all  honest  men,  not  blinded 
by  party  passion,  felt  that  the  President  held  great 
constitutional  functions,  which  made  him,  in  his 
sphere,  the  spokesman  of  the  republic. 

The  foe  that  threatens  American  institutions  to-day 
is  not  absolutism,  but  anarchy ;  not  the  tyranny  of  a 
man,  but  a  tyranny  of  the  mob.  To  meet  it  we  need 
the  strong  hand  of  power.  If  we  were  not  a  nation 
before  the  Civil  War,  we  have  been  since.  A  nation 
must  have  a  head.  There  is  no  ground  to  fear  that 
the  President  of  the  United  States,  absolute  as  he  is 
within  his  bounds  of  office,  will  ever  act  the  part  of 
Caesar.  The  foundations  of  American  liberty  are  laid 
too  deep.  The  checks  of  the  Constitution  are  ample 
for  any  strain,  because  they  are  backed  by  the  senti- 
ment of  a  free  and  intelligent  people. 

It  might  seem  that  there  was  grave  danger  of  his 
acting  rashly  in  great  emergencies.  Had  he  less 
power,  there  would  be.  But  concentration  of  power 
brings  concentration  of  responsibility.  The  most  im- 
petuous man  is  held  back  if  a  hasty  word  or  act  of 
his  might  put  the  peace  or  welfare  of  a  nation  in 
peril.  It  is  his  very  absolutism  that  has  made  the 
President,  in  respect  to  all  matters  of  foreign  policy, 
—  and  there  he  is  most  powerful,  —  the  great  con- 
servative force  in  our  constitutional  system. 


CHAPTER  V 

THE  EXEMPTION  OF  THE  ACCUSED  FROM  EXAMI- 
NATION IN  CRIMINAL  PROCEEDINGS1 

r  I'^HE  exemption  of  persons  accused  of  crime  from 
-L  being  compelled  to  testify  against  themselves 
is  one  of  the  institutions  of  English  jurisprudence 
which  we  have  fully  adopted.  It  has  been  incorpor- 
ated into  the  Constitutions  of  all  but  three  2  of  our 
States,  and  was  grafted  into  that  of  the  United  States 
at  the  instance  of  the  first  Congress,  by  the  Fifth 
Amendment.  This  declares  that  no  person  shall  be 
compelled  in  any  criminal  case  to  be  a  witness  against 
himself,  and  the  State  Constitutions  use  language 
substantially  similar. 

The  practical  construction  which  these  provisions 
have  received  from  courts  and  legislatures  has  been 
such  as  generally  to  exclude  any  preliminary  exam- 
ination of  a  person  charged  with  crime,  by  a  magis- 
trate acting  for  that  purpose  on  behalf  of  the  State. 
It  is  the  purpose  of  this  chapter  to  inquire  whether 
that  construction  is  the  proper  one. 

And  what,  in  the  first  place,  was  the  reason  for  the 
original  establishment  of  this  rule  of  immunity?  The 

1  In  preparing  this  chapter  free  use  has  been  made  of  a  paper  read 
by  the  author  before  the  American  Bar  Association,  in  1883. 

2  Georgia,  Iowa,  and  New  Jersey.     Michigan  did  not  introduce  the 
provision  until  1850,  nor  South  Carolina  until  1868. 


u8     EXEMPTION   OF   THE  ACCUSED   FROM 

slightest  glance  at  English  history  leaves  us  in  no 
doubt  as  to  that 

Our  fathers,  in  the  era  of  our  early  constitution- 
making,  were  not  acting  the  part  of  political  theorists. 
They  undertook  to  deal  with  practical  questions  in  a 
practical  way.  It  was  their  business  to  gather  in  the 
hard-won  fruits  of  the  Revolution.  They  had  just 
struck  off  the  hold  of  a  government  which  had  been 
always  hard,  and  often  hostile,  —  a  government  ad- 
ministered in  the  interest  of  the  great  and  the  rich ; 
a  government  which  was  suspicious,  jealous,  over- 
powering, when  it  wished  to  overpower.  Men  were 
still  living  in  whose  boyhood  torture,  even,  had  been 
applied  on  British  soil,  to  wring  confessions  from  un- 
willing lips ;  and  the  common  law  gave  no  sufficient 
warrant  against  its  future  use,  should  public  safety 
ever  be  deemed  to  demand  it,  by  those  in  power. 

If  we  turn  to  the  leading  writers  on  the  English 
jurisprudence  of  their  day,  we  find  that  Britton,  in- 
deed, had  said1  that  felons  must  be  brought  into 
court  without  irons,  "  so  that  they  may  not  be  de- 
prived of  reason  by  pain,  nor  be  constrained  to  an- 
swer by  force,  but  of  their  own  free  will ;  "  but  Bracton 
puts  this  privilege  as  granted  so  that  they  might  not 
appear  compelled  to  offer  to  undergo  the  trial  by 
ordeal.2  Coke  gravely  tells  us  in  his  "  Institutes  "  3 
that  "  there  is  no  one  opinion  in  our  books  or  judiciall 
records  (that  we  have  seen  and  remember)  for  the 
maintenance  of  torture  or  torments,"  and  that  Magna 

1  Cap.  v.  36. 

2  Bracton,  lib.  iii.  137,  "Ne  videat  coact'  ad  aliquam  purgationem 
suscipiendam."  8  Vol.  iii.  p.  35. 


EXAMINATION  IN  CRIMINAL  PROCEEDINGS  119 

Charta  forbids  it;  yet  a  few  years  before  (1619)  he 
had  signed,  as  privy  councillor,  a  warrant  to  put  one 
charged  with  treason  to  the  rack ; 1  and  in  his  speech 
as  Attorney-General,  in  1600,  in  the  prosecution  of 
the  earls  of  Essex  and  Southampton,  he  attributes  to 
the  queen  "  overmuch  clemency  to  some  "  in  the  in- 
quiry into  the  matter  in  hand,  since,  "  out  of  her 
princely  mercy,  no  man  was  racked,  tortured,  or 
pressed  to  speak  anything  farther  than  of  their  own 
accord  and  willing  minds,  for  discharge  of  their  con- 
sciences they  uttered."2  So  in  1613,  in  the  Countess 
of  Shrewsbury's  Case,  Coke,3  as  chief-justice,  men- 
tioned it  as  a  special  privilege  of  the  peerage  in  legal 
proceedings  that,  "  for  the  honor  and  reverence  which 
the  law  gives  to  nobility,  their  bodies  are  not  subject 
to  torture  in  causa  criminis  l&sce  majestatis" 

It  took,  in  truth,  Cromwell  and  the  Civil  War  to 
root  out  torture  from  the  English  courts;  nor  was  it 
given  up  in  Scotland  until  the  succeeding  century. 

The  whole  criminal  code  of  England  was  a  bloody 
and  heartless  one  when  the  Pilgrims  sailed  away  for 
freer  shores.  Its  severity,  it  is  true,  often  prevented 
its  execution.  Juries  stood  ready  to  violate  their 
oaths  rather  than  send  a  man  to  the  gallows  for  some 
trivial  offence ;  and  judges  construed  the  strength  out 
of  many  a  Draconian  statute.  But  there  had  been 
also  a  Chief-Justice  Jeffreys,  and  indeed,  wherever  the 
interests  of  the  party  in  power  were  involved  in  a 
criminal  proceeding,  the  bench  had  proved  but  a 
feeble  barrier  against  political  passions  and  prejudices. 

1  Samuel  Peacock:  Ann.  Reg.  for  1790;  Antiq.  96. 

2  i  State  Trials,  1336.  3  12  Rep.  96. 


i2o     EXEMPTION   OF  THE  ACCUSED   FROM 

Under  the  guise  of  prosecuting  crime,  the  ministers 
of  justice  had  too  often  been  seen  to  strike  down  the 
innocent  and  spare  the  guilty. 

What  might  be  the  future  of  the  new  governments 
which  a  hundred  years  ago  were  being  here  called 
into  life,  to  succeed  to  the  rights  forfeited  by  the 
British  Crown, who  could  tell?  They  were  to  be  clad 
with  the  same  sovereign  power.  They  might  abuse  it 
in  the  same  way. 

For  this  cause  we  find  these  solemn  guaranties  in 
our  American  Constitutions  of  the  right  of  all  accused 
of  crime  to  have  fair  notice  of  the  charge,  defence 
by  counsel,  trial  by  jury,  and  exemption  from  being 
forced  to  testify  against  themselves. 

That  of  defence  by  counsel  is  more  nearly  con- 
nected than  one  might  think  with  that  of  immunity 
from  enforced  confession. 

In  Finch's  "  Discourse  on  Law,"  he  speaks  approv- 
ingly of  the  then  English  rule  of  refusing  counsel 
when  the  prisoner  denied  the  fact,  and  gives  this  as 
his  reason :  — 

"  For  either  his  conscience,  perhaps,  will  sting  him 
to  utter  the  truth,  or  otherwise,  by  his  gesture,  coun- 
tenance, or  simplicity  of  speech,  it  may  bee  discovered ; 
which  the  artificial  speech  of  his  counsel  learned, 
would  hide  and  colour.  Also  himself  can  best  an- 
swer to  the  fact."  1 

The  power  of  a  law  can  seldom  be  known  or  fore- 
told when  it  is  enacted.  It  will  lie  in  the  construction 
and  operation  to  be  given  it  by  the  courts  and  people. 

1  Edition  of  1661,  p.  386. 


EXAMINATION  IN  CRIMINAL  PROCEEDINGS  121 

If  it  appeals  to  some  popular  prejudice;  if  it  is 
rooted  in  some  traditional  principle  of  freedom,  for 
which  a  former  generation  may  have  fought  with  their 
kings,  and  fought  successfully;  if  it  attracts  human 
sympathy,  or  reassures  human  fears,  it  may  rear  up 
around  itself  a  wall  of  protection  and  public  rever- 
ence which  will  endure  long  after  the  reason  of  the 
enactment  has  ceased  to  exist. 

A  law  may  grow  into  an  institution.  It  may  be 
extended  by  analogy.  It  may  be  expounded  and 
expanded  by  some  course  of  judicial  decision,  far 
beyond  the  anticipations  of  its  framers. 

So  did  the  little  phrase,  "  impair  the  obligation  of 
contracts  "  —  like  the  genius  of  some  Arabian  tale  — 
at  the  touch  of  the  magic  wand  of  Chief-Justice  Mar- 
shall,, rise  and  spread  into  the  form  of  that  invincible 
champion  of  chartered  franchises,  by  which  the  whole 
theory  of  American  corporations  was  to  be  revolution- 
ized once  and  again.  And  so,  by  means  perhaps  less 
direct,  but  no  less  controlling,  has  a  new  meaning 
been  read  into  many  a  provision  of  statute  or  consti- 
tution, by  public  opinion  and  the  lapse  of  time,  —  a 
meaning  by  which  the  law,  it  may  be,  at  last  ceases 
to  protect,  and  begins  to  oppress  society. 

Has  not  this  been  the  history  of  the  constitutional 
guaranty  now  under  consideration? 

The  judges  of  England  had  given  it  as  their  opin- 
ion, in  1628,  under  the  spur  of  the  public  sentiment 
that  was  then  dictating  the  Petition  of  Right,  that  to 
compel  a  discovery  by  torture,  from  one  accused  of 
crime,  was  not  allowable  by  the  laws  of  the  realm. 


122     EXEMPTION   OF   THE   ACCUSED   FROM 

All  precedent,  however,  was  against  them.  The 
practice  of  the  reigning  sovereign  continued  to  be 
against  them  as  long  as  he  had  courts  to  control. 
The  authorities  which  they  could  cite  to  sustain  their 
opinion  were  uncertain.  Britton,  in  the  passage  al- 
ready quoted,  was  the  strongest  of  all.  Fortescue1 
had  inveighed,  with  a  manly  outburst  of  feeling, 
against  the  barbarity  and  folly  of  the  practice,  but 
had  not  ventured  to  deny  its  legality.  Jardine,  in 
our  own  day,  has  not  hesitated  to  defend  it  as  an 
ancient  flower  of  the  prerogative.  The  maxim  Nemo 
tenetur  accusare  seipsum  first  appears  in  English  law 
books2  at  the  era  of  the  civil  war,  and  certainly 
derives  no  authority  from  the  language  in  which  it  is 
expressed.  As  Ortolan  said  of  the  theories  of  Roman 
law  and  legend  evolved  by  the  German  historical 
school,  it  has  the  singular  merit  of  having  been  wholly 
unknown  to  the  Romans  themselves.  Hardly  two 
authors  quote  it  in  the  same  words,  and  in  one  leading 
case,3  it  is  cited  twice  in  the  same  opinion,  —  once  as 
Nemo  tenetur  accusare  seipsum,  and  once  as  Nemo 
tenetttr  prodere  seipsum. 

Here,  then,  was  a  disputable  doctrine  of  uncer- 
tain origin,  —  a  doctrine  that  great  men  could  assert 
in  books,  and  deny  in  practice.  It  was  a  doctrine 
in  advance  of  the  utterance  of  the  judges  in  Felton's 
Case.  They  only  forbade  torture.  This  went  fur- 
ther, and  forbade  any  form  of  compulsion.  In  the 

1  Cap.  xxii.,  folio  24. 

2  Wingate's  "  Maxims,"  1648. 

8  People  v.  McMahon,  15  New  York  Reports,  387,  390. 


EXAMINATION  IN  CRIMINAL  PROCEEDINGS  123 

Countess  of  Shrewsbury's  Case,  already  cited,  while 
her  rank  and  sex  might  save  her  from  the  rack, 
Coke  and  Bacon  concurred  in  holding  that  a  fine  of 
.£20,000  and  imprisonment  during  the  king's  pleasure 
were  but  a  just  punishment  for  her  refusal  to  crim- 
inate herself;  and  the  poor  lady,  in  fact,  died  in  the 
Tower. 

Our  forefathers,  then,  approving  to  its  full  extent 
the  principle  formulated  in  Wingate's  maxim,  deter- 
mined to  give  it  a  place  in  their  Constitutions.  They 
did  so.  But  did  they  mean  to  do  more,  and  in  effect 
impede,  if  not  prevent,  disclosures  of  crime,  not  pro- 
cured by  force  or  threatened  fine  or  imprisonment? 
Did  they  intend  to  forbid  any  preliminary  examina- 
tion of  an  accused  person  designed  only  to  assist  the 
proper  authority  in  determining  whether  he  should 
be  prosecuted  or  discharged?  For  this  is  the  result 
to  which  a  hundred  years  of  use  has  really  brought 
us. 

In  few  of  our  States l  is  the  prisoner,  on  his  arrest, 
even  asked  by  the  examining  or  committing  magis- 
trate if  he  desires  to  make  a  statement;  and  in  almost 
every  one  of  these  the  magistrate  is  enjoined  to  cau- 
tion him  that  he  need  say  nothing,  and  that  whatever 
he  does  say  may  be  used  against  him.  Similar 
provisions  were  introduced  into  the  English  law  by 
Sir  John  Jervis's  Act2  in  1848. 

1  Some  sort  of  provision  to  this  effect  is  made  in  Delaware,  Louis- 
iana, Mississippi,  Missouri,  New  Hampshire,  New  Jersey,  New  York, 
North  Carolina,  Tennessee,  and  Texas,  and  in  these  States  only. 

2  ii  &  12  Viet.,  cap.  xlii. 


124     EXEMPTION   OF  THE   ACCUSED   FROM 

Is  it  not  plain  that  such  an  invitation  to  speak  is 
rather  a  counsel  to  keep  silent? 

The  object  of  criminal  prosecutions  is  to  detect 
the  authors  of  crime,  and  to  punish  them.  In  the 
majority  of  cases  the  person  arrested  is  the  person 
guilty.  In  most  countries  the  first  step  is  to  ask  him 
to  give  an  account  of  himself  with  reference  to  the 
crime  in  question ;  to  say  where  he  was  and  what  he 
was  doing  at  the  time  of  its  commission;  to  explain, 
if  he  can,  the  circumstances  which  fasten  suspicion 
upon  him.  In  most  countries  this  inquiry  is  con- 
ducted by  a  magistrate  or  prosecuting  officer,  and 
instituted  before  the  prisoner  has  consulted  counsel, 
or  had  time  to  frame  theories  of  defence.  The  result 
of  the  examination  is  put  in  writing  by  the  same  au- 
thority, and  therefore  preserved  in  an  authentic  form. 
If  the  accused  be  innocent,  he  will  often  be  able  to  clear 
himself  by  a  frank  statement ;  if  guilty,  he  will  probably 
become  involved  in  contradictions  and  absurdities. 

Such  was  the  practice  in  England  until  the  Act  of 
1848.  Her  justices  of  the  peace  were  originally 
more  like  our  constables,  —  prosecuting,  rather  than 
judicial  officers.  From  ancient  times,  and  under  the 
positive  injunctions  of  an  Act  of  I554,1  they  had 
made  it  a  principal  part  of  their  duty  to  examine  the 
prisoner,  and  record  whatever  information  he  gave.2 
In  the  Countess  of  Shrewsbury's  Case,  we  find  Lord 
Bacon  pressing  her  to  a  disclosure  by  this  very  con- 
sideration of  ancient  and  reasonable  practice. 

1  2  &  3  P.  &  M.,  c.  x. 

2  i  Stephens'  "History  of  the  Criminal  Law  of  England,"  2 19,  221. 


EXAMINATION  IN  CRIMINAL  PROCEEDINGS  125 

"  No  subject/'  he  says,  in  his  stately  fashion,1  "  was 
ever  brought  in  causes  of  estate  to  trial  judicial, 
but  first  he  passed  examination ;  for  examination  is 
the  entrance  of  justice  in  criminal  causes :  it  is  one 
of  the  eyes  of  the  king's  politic  body:  there  are 
but  two  —  information  and  examination :  it  may  not 
be  endured  that  one  of  the  lights  be  put  out  by  your 
example." 

No  prisoner,  indeed,  can  hope  to  be  exempted 
from  examination  simply  because  the  law  makes  no 
provision  for  requiring  it.  Some  such  questioning, 
under  any  system  of  jurisprudence,  he  is  certain  to 
undergo.  It  may  come  from  neighbors,  from  busy- 
bodies,  from  reporters,  from  constables,  detectives, 
jailers.  It  will  come  from  them  if  it  does  not  come 
from  authority  of  law.  And  the  answers  obtained, 
lying  simply  in  human  memory,  will  be  easily  twisted 
and  perverted  by  the  narrator,  anxious,  perhaps,  to 
magnify  the  importance  of  the  revelation  his  sagacity 
has  secured,  or  perhaps  to  screen  a  friend  or  serve  a 
grudge. 

It  is,  in  fact,  the  evils  and  inaccuracies  of  tes- 
timony founded  on  these  extra-judicial  confes- 
sions, which  have  led  English  and  American  courts 
to  confine  its  introduction  within  such  narrow 
bounds. 

But  for  the  very  reason  that  those  in  authority  have 
no  right  to  require  a  disclosure,  those  without  author- 
ity feel  justified  in  seeking  to  worm  it  out  by  threats, 
by  ill  treatment,  by  fraud,  by  holding  out  false  hopes, 

i  2  State  Trials,  770,  778. 


126     EXEMPTION   OF  THE   ACCUSED   FROM 

by  putting  forward  false  pretences.1  On  information 
thus  obtained  rests  a  large  part  of  the  convictions  for 
crime  in  any  of  our  courts.  The  source  of  the  in- 
formation may  not  appear  at  the  trial.  Unguarded 
answers  may  have  put  the  inquirer  on  the  track  of 
more  certain  evidences  of  guilt ;  and  an  explicit  con- 
fession, however  obtained,  if  once  made,  is  likely  to 
result  in  a  plea  of  guilty. 

In  many  cases,  if  not  in  most,  the  conviction  of  the 
prisoner,  in  this  country  as  well  as  under  the  conti- 
nental mode  of  procedure,  results  from  words  spoken 
by  himself.  But  what  European  courts  accomplish 
by  direct  means,  we  attain  by  indirection. 

Unwilling  to  allow  a  magistrate  to  institute,  as  a 
matter  of  course,  a  formal  examination,  and  place  the 
result  on  record,  we  leave  the  same  information  to  be 
fished  for  by  the  sheriff  who  makes  the  arrest,  by  the 
jailer,  by  a  fellow-prisoner  turned  informer,  or  by  the 
detective  in  disguise,  and  only  require  the  witness 
who  proves  it  to  add,  perhaps,  perjury  to  fraud,  in 
swearing  that  no  undue  means  were  used  to  elicit 
the  confession. 

The  tendency  of  modern  legislation  has,  for  fifty 
years,  been  strongly  in  favor  of  admitting  parties  in 
interest  as  competent  witnesses.  The  common  law 
excluded  them  because  it  believed  that  they  were 

1  In  a  recent  case  which  has  attracted  wide  attention,  the  mate  of 
a  ship  was  convicted  of  murder,  largely  upon  the  testimony  of  a  police 
officer  as  to  a  reply  he  had  made  to  a  question  of  his,  put  to  him  after 
he  had  been  stripped  to  the  skin,  and  while  being  subjected  to  an 
inquisitorial  examination  in  the  police  station,  in  that  humiliating 
condition.  The  courts  reversed  the  judgment  for  this  cause.  Bram 
v.  United  States,  168  United  States  Reports,  532. 


EXAMINATION  IN  CRIMINAL  PROCEEDINGS  127 

likely  to  lie,  and  certain  to  be  tempted  to  lie.  But, 
for  a  generation  past,  England,  and  for  the  most  part 
America,  have  received  their  testimony  in  civil  actions 
for  what  it  is  worth,  and  have  found  the  cause  of 
justice  advanced  by  it. 

In  criminal  proceedings,  the  temptation  to  perjury, 
if  the  accused  is  allowed  to  testify  for  himself,  is  un- 
doubtedly greater,  —  rising  with  the  degree  of  the 
crime  charged;  and  yet  he  is  to-day  a  competent 
witness  in  most  of  our  States,  and  has  been  since 
1878  in  all  courts  of  the  United  States. 

It  is  a  general  feature  of  these  recent  laws  for  ad- 
mitting the  accused  to  the  witness-stand,  that  his 
failure  to  testify  shall  not  create  any  presumption 
against  him.  I  cannot  but  think  that  this  proviso  is 
only  another  proof  that  the  spirit  of  the  constitutional 
guaranty  in  his  favor  has  been  misconceived  in  its 
administration. 

Were  it  not  for  that  guaranty,  who  would  say  that 
if  a  man  has  the  right  to  speak  in  his  own  behalf,  to 
explain  all  the  circumstances  brought  up  against  him, 
and  declines  to  avail  himself  of  it,  it  ought  not  to  be 
deemed  an  indication  that  he  cannot  explain  them? 
In  the  forum  of  common-sense  it  is  such  an  indica- 
tion. If  our  boy,  our  servant,  our  clerk,  is  charged 
with  some  fault,  and  denies  it,  we  expect  him  to 
make  a  frank  statement  of  what  he  did  or  knew.  If 
he  does  not,  we  consider  the  charge  half  proved. 
Should  we  be  more  tender  of  the  prisoner  in  the 
dock?  If  we  have  given  him  the  new  right  to  testify 
for  himself,  it  does  not  follow  that  we  should  dis- 
turb the  balance  of  justice  by  forbidding  the  jury  to 
suspect  him  if  he  keeps  silent. 


128     EXEMPTION   OF  THE   ACCUSED   FROM 

Such  has  been  the  view  of  some,1  but  not  of  most 
courts,  in  administering  justice  in  such  cases,  under 
statutes  not  containing  a  positive  prohibition  against 
comment  on  the  position  of  the  accused  if  he  declines 
to  testify.  The  general  current  of  decision  has  been 
towards  making  his  constitutional  privilege  as  wide  as 
the  words  will  bear. 

This  course  of  construction  has  led  to  many  rulings 
in  favor  of  the  defence  which  I  cannot  but  think 
strained  and  unnecessary. 

Thus,  in  a  recent  case  in  New  York, 2  it  was  held 
that  the  person  of  a  woman  charged  with  killing  her 
infant  child,  could  not,  without  her  own  consent,  be 
examined  by  physicians  deputed  by  the  coroner,  to 
ascertain  if  she  had  recently  been  a  mother.  The 
same  principle  would  seem  to  preclude  searching  the 
pockets  of  a  suspected  thief,  or  stripping  a  man  ar- 
rested for  murder,  to  see  if  his  body  shows  marks  of 
blood  or  violence. 

In  a  later  case  in  Georgia,3  indeed,  the  court  re- 
jected evidence  that  the  defendant's  foot  fitted  exactly 
the  tracks  left  on  the  ground  by  the  perpetrator  of  a 
crime,  because,  to  obtain  the  proof,  his  foot  was 
placed  by  force  in  the  necessary  position. 

A  different  and,  as  it  seems  to  me,  sounder  conclu- 
sion has  been  reached  in  some  other  of  our  States,  in 
admitting  testimony  of  a  similar  character.4 

1  States  v.  Bartlett,  55  Maine  Reports,  215-221. 

2  People  v.  McCoy,  45  Howard's  Practice  Reports,  216. 
8  Day  v.  State,  63  Georgia  Reports,  667. 

*  State  v.  Graham,  74  North  Carolina  Reports,  646 ;  State  v.  Ah 
Chuey,  14  Nevada  Reports,  79 ;  Walker  v.  State,  7  Texas  Appeals 
Reports,  245.  A  more  extended  and  thorough  discussion  of  the 


EXAMINATION  IN  CRIMINAL  PROCEEDINGS  129 

The  leading  authorities,  however,  are  in  accord  in 
holding  that  the  prisoner  who  accepts  the  benefits  of 
a  statute  making  him  a  competent  witness,  accepts 
them  to  the  extent  of  becoming  open  to  the  same 
cross-examination  to  which  any  other  witness  may  be 
subject,  and  in  respect  to  whatever  can  legitimately 
throw  light  on  the  question  of  his  guilt,  whether  or 
not  it  be  connected  immediately  with  his  direct  testi- 
mony.1 When  he  voluntarily  puts  himself  under  oath, 
the  logic  of  the  law  leads  inevitably  to  this  result; 
although  where  the  statute  simply  allows  him  to 
make  a  statement,  there  are  judges  of  eminence  who 
have  reached  a  different  conclusion. 

In  fact,  there  are  few  parts  of  criminal  jurisprudence 
in  which  American  judges  in  expounding  the  law,  and 
American  legislators  in  framing  the  law,  do  not  lean 
on  the  side  of  the  defence. 

Much  is  said  with  us  as  to  the  rights  of  criminals ; 
so  much  that  we  almost  forget  that  the  State  has 
rights  against  criminals  and  against  those  charged 
with  crime,  on  the  maintenance  of  which  the  public 
life  depends,  and  that  it  is  mainly  for  their  mainte- 
nance that  the  State  exists. 

"  And  sovereign  Law  —  that  State 's  collected  will  — 
O'er  thrones  and  globes  elate, 
Sits  empress,  crowning  good,  repressing  ill." 

A  sharp  lecture  was  read  a  few  years  ago  to  the 
American  public  by  a  well-known  sociologist,2  on 

authorities  will  be  found  in  the  "  Central  Law  Journal,"  vol.  xv.,  pp. 
2,  207. 

1  State  v.  Griswold,  67  Connecticut  Reports,  290. 

2  Professor  William  Graham  Sumner,  LL.D.,  of  Yale  University. 

9 


1 30     EXEMPTION   OF   THE   ACCUSED    FROM 

"  The  Forgotten  Man."  He  was  the  hard-working, 
law-abiding,  unobtrusive  man,  whom  legislators  for- 
got, in  their  zeal  to  help  the  poor,  reform  the  vicious, 
and  grant  relief  to  every  interest  that  clamors  and 
pushes  for  it. 

The  noblest  feature  of  modern  society  is  its  attain- 
ments, not  in  science  and  art,  but  in  humanity.  We 
recognize  the  dignity  and  worth  of  man,  as  man,  and 
recognize  it  even  in  the  meanest  and  basest.  There 
is  but  one  temple  on  earth,  says  Novalis,  and  that  is 
the  body  of  man. 

But  there  is  a  point  at  which  humanity  turns  into 
sentimentalism.  There  is  a  point  where  selfishness 
—  that  is,  putting  forward  self-protection  as  the  first 
object  —  is  becoming  to  a  government. 

The  American  system  of  criminal  prosecutibns  is 
one  which  seldom  convicts  the  innocent ;  but  it  is  also 
one  which  often  acquits  the  guilty.  The  proportion 
of  acquittals  to  jury  trials  is  probably  three  times  as 
great  as  in  England,  and  ten  times  as  great  as  in 
Scotland  or  on  the  Continent.  There  are  few  civilized 
governments  in  which  homicide  is  as  frequent  as  in 
some  of  our  western  and  southwestern  States  and 
Territories ;  there  are  none  in  which  convictions  for 
murder  are  so  rare. 

The  defendant  has,  under  all  systems  of  criminal 
justice,  a  great  advantage  in  the  matter  of  pleading. 
The  prosecutor  must  formulate  his  charges  with  pre- 
cision and  accuracy;  but  the  plea  of  Not  guilty  leaves 
him  utterly  ignorant  of  the  defence  by  which  he  is  to 
be  met.  It  may  be  an  alibi,  a  justification,  a  claim  of 


EXAMINATION  IN  CRIMINAL  PROCEEDINGS  131 

temporary  insanity.  Whatever  it  be,  he  learns  it  for 
the  first  time  when  the  trial  is  begun,  and  must  be 
ready  to  meet  and  disprove  it  on  the  instant,  with  no 
possibility  of  a  postponement  on  the  ground  of  surprise. 

This  embarrassment  to  the  prosecution  seems  to  be 
an  inevitable  one.  Not  so  as  to  the  embarrassments 
set  up  by  our  American  administration  of  the  rules  of 
evidence ;  for  it  is  these  rules  which  have  grown  into 
an  artificial  net-work,  through  whose  meshes  a  well- 
defended  criminal  can  so  often  slip. 

No  fault  is  to  be  found  with  the  fundamental  prin- 
ciple that  the  State  must  satisfy  the  jury  of  the 
prisoner's  guilt  beyond  a  reasonable  doubt.  It 
speaks  well  for  society  when  it  can  afford  to  say  to  a 
citizen  who  is  pursued  for  a  claim,  however  great,  in- 
volving no  moral  wrong  or  civic  degradation :  You 
must  pay  it,  if  there  is  a  bare  preponderance  of  evi- 
dence against  you ;  and  yet  say  to  the  same  man,  if 
charged  with  crime :  We  will  declare  you  innocent,  un- 
less we  show  that  there  is  no  hypothesis  to  be  framed 
which  is  not  inconsistent  with  your  innocence.  Only 
a  free  State  can  or  will  take  this  attitude.  Perhaps  no 
State  which  does  not  take  it  can  be  free. 

But  here  is  it  not  time  to  stop? 

We  have  relieved  the  prisoner  from  the  necessity, 
ordinarily  imposed  in  civil  cases,  of  pleading  the 
nature  of  his  defence.  We  have  thrown  upon  the 
public  a  burden  of  proof  heavier  than  it  is  thought 
just  to  impose  on  any  private  suitor.  Why,  at  the 
same  time,  cut  off  the  counter  right  which  every 
private  suitor  has,  of  putting  his  adversary  to  his  oath 
as  to  the  merits  of  his  defence? 


i32     EXEMPTION   OF   THE  ACCUSED   FROM 

The  historical  reason  we  have  already  considered. 
If  government  can  ask  a  prisoner  to  testify,  it  can 
require  it  of  him :  if  it  can  require  it,  it  can  force  a 
compliance.  All  such  force  our  Constitutions  forbid ; 
and  far  be  it  from  any  advocate  of  law  reform  to  urge 
a  recurrence  to  it ;  whether  it  be  the  Bavarian  plan, 
now  or  lately  in  force,  of  giving  only  bread  and  water 
to  an  accused  who  refuses  to  make  a  statement,  or  the 
more  downright  English  methods  of  rack  and  thumb- 
screw, fine  and  imprisonment,  discarded  two  centuries 
ago.  But  between  forbidding  physical  or  moral  com- 
pulsion, and  inviting,  or  even  urging  a  frank  dis- 
closure, the  difference  is  wide.  We  have  construed  a 
prohibition  to  compel  as  a  prohibition  to  request. 

We  assume  a  burden  of  proof  unknown  except 
where  the  English  tongue  is  spoken ;  we  demand  a 
unanimity  in  the  verdict  equally  unknown  elsewhere ; 
we  often  permit  the  jury  —  a  thing  unheard  of  in  any 
other  land  —  to  go  to  their  homes  and  mingle  with 
the  friends  of  the  prisoner,  while  they  are  deliberating 
upon  his  guilt,  —  and  yet  we  reject  the  aid  of  the 
simple  expedient  which  would  occur  first  of  all  to  any 
child,  of  asking  the  accused  what  he  has  to  say  about 
the  charge  against  him. 

They  are  still  jealous  of  their  government  in  Great 
Britain.  It  is  still  a  royal  government,  supported  by 
an  idle  aristocracy ;  two  of  the  estates  of  the  realm 
ruling  by  no  other  right  than  that  of  birth.  In 
prosecutions  for  political  offences,  the  interests  of 
these  two  estates  are  directly  involved,  and  to  one  of 
them  the  bench  itself,  in  its  highest  places,  belongs. 


EXAMINATION  IN  CRIMINAL  PROCEEDINGS  133 

It  is  not  strange,  therefore,  that  while  not  surrender- 
ing the  procedure  of  preliminary  examinations,  close 
upon  the  arrest,  they  have  been  sedulous  to  require 
the  magistrate  to  warn  the  prisoner  that  he  need  not 
answer,  and  that,  if  he  does,  his  words  may  be  used 
against  him. 

But  with  us,  government  has  no  other  office  or  end 
than  to  order  and  protect  the  peace  of  society.  The 
prisoner  is  tried  before  judges,  and  by  prosecuting 
officers,  who  were,  directly  or  indirectly,  of  his  own 
choosing.  The  jury  is  made  up  of  his  neighbors. 
The  law  is  one,  directly  or  indirectly,  again,  of  his 
own  making.  He  had  been,  probably,  educated  at 
the  expense  of  the  State,  for  the  very  purpose  of 
giving  him  the  intelligence  necessary  to  govern  his 
conduct  as  becomes  a  good  citizen.  No  private 
prosecutor,  as  in  most  countries,  is  pushing  the  case 
against  him,  for  revenge  or  restitution.  He  has  to 
contend  only  with  the  public,  and  the  public  have  no 
interest  except  to  discover  the  truth,  whichever  way 
it  lies. 

If,  then,  we  would  make  the  punishment  of  crime 
as  certain  here  as  it  is  in  Europe  —  I  might  almost 
say,  as  it  is  in  Mexico  or  China  —  is  it  not  time  to 
abandon  our  attempt  to  fight  it  without  the  use  of  the 
ordinary  weapons  that  lie  at  hand;  without  asking 
the  man  who,  of  all  the  world,  knows  best  what  the 
facts  are,  to  tell  us  about  them ;  and  without  asking 
him  in  such  a  way  as  to  facilitate,  rather  than  to  pre- 
vent, an  honest  statement?  Let  him  be  brought 
before  the  examining  magistrate,  as  he  is  abroad, 


134     EXEMPTION   OF   THE   ACCUSED   FROM 

before  he  has  time  to  fabricate  an  explanation ;  be- 
fore he  has  seen  counsel;  when  the  proofs  of  guilt 
are  fresh.  Let  him  be  asked  if  he  desires  to  make 
any  statement  or  explanation  to  be  placed  on  record. 
And  let  all  be  done,  not  as  a  matter  of  favor  from 
him,  but  of  right  to  the  State. 

An  innocent  man,  under  such  an  examination,  may 
become  confused.  He  may  answer  confusedly  or 
incorrectly.  He  may  admit  more  than  he  intended, 
and  more  than  is  true.  But  he  will  certainly  be  less 
liable  to  do  so  than  if  questioned  unofficially  by  a 
wheedling  detective  or  incredulous  policeman;  and 
such  questioning  is  as  sure  to  come  as  it  is  to  be  but 
half  remembered.  A  fair  report,  made  at  the  time, 
in  writing  by  an  impartial  magistrate,  proves  often 
the  best  evidence  for  the  accused,  and  results  in  his 
immediate  discharge. 

Inviting  a  statement  from  the  accused  before  the 
committing  magistrate  is,  of  course,  a  very  different 
thing  from  allowing  his  examination  by  the  court  on 
his  trial  to  the  jury,  or  even  by  the  magistrate  him- 
self, when  sitting  for  the  final  hearing  and  disposition 
of  the  cause.  Both  form  a  part  of  the  general  Con- 
tinental system,  but  it  is  the  interrogation  from  the 
bench,  when  the  issue  of  Guilty  or  Not  guilty  is 
before  the  jury  for  decision,  which  becomes  often  and 
justly  a  matter  of  reproach. 

In  France,  for  instance,  the  preliminary  examination 
is  conducted  by  the  prosecuting  officer,  in  order  to 
determine  whether  there  is  or  is  not  ground  to  pros- 
ecute ;  but  when  the  accused  is  once  informed  against 


EXAMINATION  IN  CRIMINAL  PROCEEDINGS  135 

and  put  on  trial,  the  judge  is  apt  in  practice  to  pre- 
sume his  guilt,  and  exercise  all  his  ingenuity  to  twist 
some  admission  out  of  him,  or  perhaps  to  distort 
what  is  said,  so  that  the  jury  may  receive  a  false  im- 
pression from  it. 

The  embarrassment  of  the  defendant  when  actually 
on  trial,  and  confronting  a  charge  of  crime  laid 
against  him  by  the  authority  of  the  State,  is  naturally 
and  necessarily  greater  than  when,  at  an  earlier  stage 
of  the  proceedings,  the  State  is  simply  inquiring 
whether  it  ought  to  be  put  to  the  expense  of  a  prose- 
cution. The  very  nearness  of  the  final  decision,  by  a 
verdict  which  may  convict  and  may  set  free,  must  in- 
tensify the  excitement  of  his  feelings. 

If  the  prosecutor  is  allowed  to  question  him  now, 
the  interrogation  is  sure  to  be  unfriendly :  it  may  be, 
it  is  even  likely  to  be,  if  conducted  by  the  judge. 
Under  such  circumstances  the  contest  between  the 
questioner  and  the  questioned  is  too  unequal,  and 
innocence  may  well  seem  guilt.  Pomeroy,  in  his 
work  on  Constitutional  Law,1  has  not  hesitated  to  say 
that  the  rule  "  that  no  person  shall  be  compelled  to 
be  a  witness  against  himself  can  only  be  supported  by 
that  intense  reverence  for  the  past  which  is  so  difficult 
to  be  overcome,"  and  that  "  there  can  be  no  doubt 
that  the  States  will  gradually  abandon  this  provision 
and  reject  it  from  their  Constitutions." 

I  doubt  if  the  prediction  comes  true ;  I  doubt  if  it 
would  be  well  that  it  should.  There  may  yet  come  a 
revolution  in  social  forces  which  would  make  even 
the  use  of  torture  tolerated  in  courts,  were  there  no 

1  P- 155- 


136     EXEMPTION  OF   THE   ACCUSED   FROM 

fundamental  law  to  forbid.  The  highest  refinement 
in  civilization  has,  in  former  ages,  not  been  found 
incompatible  with  the  highest  refinement  in  cruelty; 
and  the  nature  of  man  changes  little,  beneath  the 
surface,  from  generation  to  generation.  Lynch  law, 
within  our  own  borders  and  among  our  own  people, 
has  been  no  stranger  to  the  arts  of  interrogation, 
aided  even  by  torture,  at  the  foot  of  the  gallows. 

Let  us  keep  our  constitutional  guaranties  as  they 
are,  but  let  us  read  them  and  apply  them  like  reason- 
able men.  It  is  enough  to  reject  the  use  of  force, 
without  also  refusing  even  to  ask  the  defendant  to 
speak  for  himself  when  first  arrested,  and  so  at  a 
time  when  a  frank  statement  may  secure  his  im- 
mediate discharge. 

These  views  are  not  presented  without  full  con- 
sideration. They  are  the  result  of  thirty  years  of 
practice  at  the  bar,  during  which  I  have  acted  some- 
times on  behalf  of  the  government  in  criminal  prose- 
cutions, and  sometimes  for  the  defence,  and  of  five 
years  upon  the  bench,  during  which  I  have  had  oc- 
casion to  sit  both  for  the  trial  of  such  causes  with  a 
jury  on  the  circuit,  and  for  their  disposition  on 
proceedings  in  error,  as  a  member  of  an  appellate 
court. 

Nothing,  of  course,  can  now  be  done  to  remedy  a 
practice  so  inveterate  as  that  which  has  been  the 
subject  of  this  discussion,  without  the  action  of  the 
legislature.  What  I  would  suggest  is  provision  by 
statute  that  committing  magistrates,  upon  whose 
warrant  an  arrest  is  made,  should  ask  the  defendant 


EXAMINATION  IN  CRIMINAL  PROCEEDINGS  137 

when  first  brought  before  them,  whether  he  desires 
to  make  a  statement,  explaining  clearly  that  he  is 
under  no  obligation  to  do  so.  If  he  then  makes  one, 
whatever  he  says  should  be  written  down  at  length  in 
his  own  words,  and  the  whole  read  over  to  him  for 
any  corrections  or  additions  which  he  may  wish  to 
have  entered.  He  should  then  be  asked  if  he  is 
willing  to  sign  it.  If  he  declines  to  make  any  state- 
ment, or  having  made  one,  is  unable  or  declines  to 
sign,  the  fact  should  be  recorded.  In  case  of  a  for- 
eigner unfamiliar  with  our  language,  the  state- 
ment should  be  written  down  in  his  own,  by  an 
interpreter. 

This  is  no  new  or  untried  method  of  procedure. 
It  is  our  present  method  which  is  the  innovation  on 
the  practice  of  all  lands  and  all  times. 

I  do  not  think  I  am  mistaken  in  believing  that 
the  sober  judgment  of  the  country  is  tending  to  the 
belief  that  we  have  gone  too  far  towards  making  the 
law  serve  as  a  shield  of  crime.  There  is  a  growing 
and  just  impatience  of  the  delays  and  uncertainties  of 
criminal  procedure.  The  Supreme  Court  of  the 
United  States  has  reflected  this  sentiment  in  the 
course  of  its  recent  decisions  in  regard  to  the  effect 
of  the  Fifth  Amendment  on  the  provision  of  the  Inter- 
State  Commerce  Act.  One  statute  after  another 
was  passed  by  Congress  to  enable  the  Inter-State 
Commerce  Commission  to  compel  witnesses  before 
it  to  testify  as  to  violations  of  the  Act  which  it  was 
created  to  enforce,  and  finally  the  court,  limiting  the 
scope  of  earlier  decisions,  held  that  a  self-criminating 
answer  could  be  compelled,  under  pain  of  imprison- 


138     EXEMPTION    OF   THE   ACCUSED   FROM 

ment,  provided  the  witness  were  assured  against  any 
prosecution  for  the  offence.1 

One  of  its  leading  members2  not  long  since  de- 
clared before  the  American  Bar  Association  that 
justice  would  be  promoted  if,  in  cases  of  criminal 
conviction,  no  writ  of  error  should  ever  be  allowed. 
"  In  criminal  cases,"  he  said,  "  there  should  be  no 
appeal.  I  say  it  with  reluctance,  but  the  truth  is  that 
you  may  trust  a  jury  to  do  justice  to  the  accused 
with  more  safety  than  you  can  an  appellate  court  to 
secure  protection  to  the  public  by  the  speedy  punish- 
ment of  a  criminal.  To  guard  against  any  possible 
wrong  to  an  accused,  a  board  of  review  and  pardons 
might  be  created  with  power  to  set  aside  a  conviction 
or  reduce  the  punishment,  if  on  the  full  record  it 
appears,  not  that  a  technical  error  has  been  committed, 
but  that  the  defendant  is  not  guilty,  or  has  been 
excessively  punished."  3 

The  denial  of  an  appeal  is  in  accordance  with 
the  English  practice  as  respects  their  highest  tribu- 
nal for  the  trial  of  criminal  causes,  but  that  court  is 
presided  over  by  members  of  the  High  Court  of 
Justice,  whose  qualifications  for  correct  decisions  on 
points  of  law  and  evidence  may  well  be  superior  to 
those  of  the  ordinary  trial  judge  in  an  American 
court. 

I  venture  to  think  that  we  should  begin  at  the 
other  end  of  the  case  to  seek  our  remedy,  and  look 
for  it  in  giving  the  defendant  an  opportunity  to  clear 

1  Brown  v.  Walker,  161  United  States  Reports,  591. 

2  Mr.  Justice  Brewer. 

8  Reports  of  the  American  Bar  Association,  xviii.  448. 


EXAMINATION  IN  CRIMINAL  PROCEEDINGS  139 

or  convict  himself  by  a  preliminary  statement  to  a 
proper  magistrate  on  his  first  arrest. 

It  is  no  mean  distinction  to  New  Jersey  that  it  is 
the  only  American  State  that  has  steadfastly  adhered 
to  this  ancient  plan.1  It  shows  the  same  spirit  of 
independent  judgment  and  sound  conservatism  which, 
under  the  lead  of  Patterson,  made  her  influence  so 
great  and  so  healthful  in  the  Constitutional  Conven- 
tion of  1787.  And  more,  perhaps,  than  anything 
else  in  her  system  of  criminal  administration,  it  has 
made  "  Jersey  justice  "  proverbial  along  the  Atlantic 
coast,  to  signify  swift  and  certain  retribution  to  wrong- 
doers, at  the  hands  of  the  law. 

America  has  tried  many  experiments  in  the  art  of 
government.  She  has  tried  none  more  hazardous 
than  that  which  has  been  the  subject  of  this  chapter. 
There  are  parts  of  the  United  States  where  more 
criminals  are  yearly  put  to  death  by  Lynch  law,  or 
by  the  hand  of  some  private  avenger  of  blood,  than 
by  judicial  warrant.  And  is  it  not  true  that,  in  those 
communities,  public  sentiment  justifies  such  deeds  of 
violence  because  the  courts  afford  too  uncertain  a 
remedy;  not  because  they  are  corrupt,  but  because 
they  are  inefficient? 

If  we  would  make  American  justice  as  sure  as 
American  liberty ;  if  we  would  banish  pleas  of  tem- 
porary insanity  from  our  court  rooms,  and  mob 
violence  from  our  frontiers,  ought  we  not  to  begin 
by  going  back,  —  back  to  the  ancient  ways  from 

1  General  Statutes  of  New  Jersey,  i.  1119,  sec.  2. 


1 40  EXAMINATION   OF   CRIMINALS 

which  a  false  humanitarianism  may  have  led  us  off? 
Leaving  our  Constitutions  as  they  are,  let  them,  with 
such  aid  as  appropriate  legislation  can  afford,  be 
interpreted  in  their  true  spirit,  and  the  State,  in  its 
judicial  contests  with  those  whom  it  charges  with 
crime,  given  once  more  an  equal  chance. 


CHAPTER  VI 

FREEDOM  OF  INCORPORATION 

THE  Romans  made  the  world  over  again,  but 
among  their  many  achievements  none  was 
more  durable  in  its  effects  on  the  civilization  of 
mankind  than  the  invention  of  the  corporation  as  an 
instrument  of  government  and  of  trade. 

The  very  word  "civilization"  describes  the  condi- 
tion of  the  citizen  of  a  municipal  corporation,  — a 
city  or  a  city-State. 

In  the  nature  of  things,  of  course,  every  sovereign 
and  independent  government  claims  the  attributes 
of  perpetuity  and  personality.  What  the  Romans 
did  was  to  establish  in  men's  minds  the  conception 
of  perpetual  personalities  of  a  lesser  rank,  subordi- 
nate to  the  State ;  each  in  its  own  small  sphere  sub- 
serving the  interests  of  the  State  in  the  support  of 
its  political  institutions,  or  the  promotion  of  industry 
and  commerce. 

The  city-State,  as  a  public  corporation,  had  always 
been  known  since  the  beginning  of  history.  It  was 
the  first  form  of  any  real  political  organization. 
The  group  of  neighboring  villages,  uniting  around 
some  common  fortress  of  defence  into  a  tribal  settle- 
ment, grew  to  be  a  city,  and  the  city  came  to  be  a 
State;  governing  dependent  communities,  in  which 


i42  FREEDOM   OF   INCORPORATION 

perhaps  other  cities  might  be  included.  Such  had 
been  Nineveh,  Babylon,  Athens.  What  the  Romans 
did,  as  far  as  municipal  corporations  are  concerned, 
was  to  show  how  self  governing  cities  could  belong 
to  a  city-State,  subject  to  it  as  to  national  affairs, 
and  practically  independent  of  it  as  to  local  affairs. 

They  treated  every  such  place  as  if  it  were  a 
human  being,  possessing  the  right  to  life,  liberty, 
and  the  pursuit  of  happiness  in  his  own  way,  and 
yet  owing  allegiance  to  his  sovereign  and  such  pub- 
lic duties  as  allegiance  implied.  It  was  an  appli- 
cation of  the  doctrines  of  private  law,  not  to  the 
relations  of  State  and  subject,  but  to  the  attributes 
of  a  new  political  subject  which  they  had  been  the 
first  to  call  into  existence. 

The  private  corporation  of  Roman  law  was  even  a 
more  perfect  form  of  an  artificial  political  person- 
ality; composed  of  several  human  beings  but  occupy- 
ing the  place  of  one,  with  rights  and  duties  of  its 
own,  distinct  from  theirs.  It  was  formed  on  the 
model  of  the  public  corporation,  but  shaped  with  a 
freer  hand. 

The  Roman  mind  was  accustomed  to  deal  both 
with  men  and  with  property  collectively.1  The 
family  was  the  social  and  political  unit.  Succes- 
sion to  the  property  of  the  dead  was  by  a  universal 
title.  Nothing  seemed  more  natural  than  for  men 

1  The  effect  of  this  national  trait  on  Roman  law  is  well  stated  in 
Cuq's  Institutions  Juridiques  des  Romains,  50.  In  Roman  politics,  it 
is  manifested  by  the  composition  of  each  of  their  legislative  assem- 
blies. That  of  the  centuries,  as  Niebuhr  remarks  (Hist,  of  Rome,  i. 
340),  reflects  the  theory  which  regards  the  State  as  a  joint-stock 
company. 


FREEDOM   OF   INCORPORATION  143 

to  associate  in  some  close  and  permanent  way  for 
the  accomplishment  of  any  large  undertaking. 

Guilds  of  workmen  existed  as  early  as  the  reign 
of  Numa  Pompilius,  and  the  Twelve  Tables  con- 
firmed and  probably  extended  their  rights.1  Similar 
associations  were  soon  formed  by  those  who  were 
not  mere  wage-earners,  and  had  other  ends  in  view 
than  the  protection  of  trade  interests. 

Such  a  body  of  individuals  was  at  first  regarded  as 
a  mere  society  (societas).  It  did  not  differ  essen- 
tially from  the  Greek  eraipia.  It  was  a  fraternity, 
or,  if  for  business  purposes,  a  partnership.  Later 
came  the  investiture  of  some  of  these  associations 
with  the  attributes  of  personality  and  perpetuity. 
In  the  phrase  of  the  lawyers,  they  received  a  corpus; 
the  collective  body  being  treated  as  something  with 
a  distinct  life  of  its  own. 

The  juristic  person  thus  created  served  two  im- 
portant purposes.  Holding  the  possessions  of  many 
natural  persons,  and  acting  with  the  united  strength 
of  all,  it  formed  a  counterpoise  to  the  family,  as  a 
political  factor  in  the  State.  It  was  also  the  natural 
opponent  of  that  spirit  of  contempt  for  mercantile 
and  mechanical  pursuits  which  was  universal  among 
the  upper  classes  of  society  among  the  ancients. 

The  Roman  familia,  in  its  original  type,  was  the 
closest  possible  association  of  men;  and  one  that 
had,  in  itself,  much  of  the  character  of  perpetuity. 
It  massed  property,  acquired  by  the  labors  of  many, 
in  one  hand,  with  a  power  of  absolute  disposal.  It 

1  Niebuhr's  Hist,  of  Rome,  i.  432;  Mommsen's  Hist,  of  Rome, 
book  ii.,  chap.  8. 


i44  FREEDOM   OF   INCORPORATION 

put  under  the  command  of  the  head  of  the  house, 
the  paterfamilias,  the  services  of  his  children  and 
their  children,  who  worked  for  his  benefit  on  little 
better  footing  than  his  slaves,  and  with  no  greater 
reward,  except  that  to  be  anticipated  as  heirs  to  the 
succession.  In  that  capacity  they  were  recognized 
as  in  some  sort  proprietors,  even  during  his  life;1 
and  when  that  ended  they  were  put  so  absolutely  in 
his  place  that  while  they  owned  all  his  estate  they 
also  owed  all  his  debts,  as  a  personal  obligation. 
The  very  name  of  such  an  inheritance,  the  "  univer- 
sitas,"  was  one  of  those  commonly  used  as  descriptive 
of  a  corporation. 

The  political  influence  of  such  a  family  was  neces- 
sarily great.  Only  another  family  of  equal  means 
could  stand  up  against  it,  until  the  private  corpora- 
tion was  invented.  Then  for  the  first  time  opposi- 
tion could  be  made  by  capital  and  labor  combined 
in  another  way,  but  with  similar  strength  and  power 
of  resistance. 

Then,  also,  for  the  first  time,  could  mutual  sup- 
port give  tradesmen  and  artisans,  associated  together, 
a  position  of  consideration  and  of  assured  perma- 
nence. All  merchandizing  on  a  small  scale  was  held 
to  be  a  low  and  mean  pursuit,  but  some  favor  was 
accorded  to  those  engaged  in  commerce  in  a  large 
way.2  What  trade  there  was  of  the  latter  character 


1  Dig.  xxvii.  2,  de  Liberis  et  posthumis  Heredibus  instituendis,  n. 
"  In  suis  heredibus  evidentius  apparet  continuationem  dominii  eo  rent  pcr- 
ducere,  ut  nulla  videatur  hereditas  fuisse,  quasi  olim,  hi  domini  essent, 
qui  etiam  vivo  patre  quodammodo  domini  existimantur" 

2  Cicero,  de  Officiis,  i.  42. 


FREEDOM   OF   INCORPORATION  145 

in  early  Rome  was  conducted  either  by  foreigners  or 
by  the  heads  of  houses,  acting  through  their  slaves.1 
The  commonalty  had  no  share  in  it.  Indeed,  no 
Roman  citizen,  at  this  time,  could  follow  trade  as  a 
profession  without  forfeiting  his  political  rights.2 
It  was  a  base  thing  to  engage  in  any  form  of  labor 
for  which  he  was  to  be  paid  by  another.  Into  this 
new  form  of  commercial  association,  however,  the 
poorer  classes  soon  found  their  way;  and  from  the 
confidence  of  numbers  and  the  absence  of  any  limit 
to  the  capital  stock  which  might  be  contributed,  the 
corporation  gradually  rose  to  a  position  of  impor- 
tance, if  not  of  dignity.  It  could  hold  real  as  well 
as  personal  property,  and  by  a  title  of  perpetual  suc- 
cession.3 Men  of  the  highest  rank  found  in  them  a 
convenient  and  profitable  mode  of  investment.  They 
often  took  shares  in  the  name  of  some  client  or  other 
dependent,  and  sometimes  lent  to  a  company  in 
which  they  had  no  other  interest.  Plutarch  tells  us 
that  Cato  had,  in  the  name  of  Quintus,  one  of  his 
freedmen,  two  per  cent  of  the  capital  of  a  trading 
concern,  which  was  also  a  large  borrower  from  him.4 
Senators  were  forbidden  by  law  to  engage  in  mer- 

1  Mommsen's  Hist,  of  Rome,  book  iii.,  chap.    12;  Institutes  of 
Justinian,  iv.  7,  Quod  cum  eo  qui  in  aliena  potestate  est,  etc.,  2.     A  col- 
legium mercatomm  was  instituted  about  B.  c.  495,  in  connection  with 
the  temple  of  Mercury,  but  probably  only  for  purposes  of  religious 
worship.     Livy,  ii.  27. 

2  Niebuhr's  Hist,  of  Rome,  i.  447.     Tradesmen  in  ancient  Egypt 
were  also  excluded  from  participation  in  public  affairs.     Wilkinson's 
Ancient  Egyptians,  ii.  57  (chap.  7). 

8  Corpus  Inscriptionum  Latinarum,  x.  444. 
4  Plutarch's  Lives,  Clough's  translation,  ii.  344. 

10 


i46  FREEDOM   OF   INCORPORATION 

cantile  adventures;  but  who  was  to  know  if  they 
were  shareholders  in  this  or  that  corporation  (colle- 
gium} formed  for  gold-mining,  or  contracting  for 
public  works,  or  Egyptian  trade?1 

Under  the  influence  of  such  causes,  during  the  era 
of  the  republic,  the  formation  of  voluntary  associa- 
tions for  purposes  not  in  themselves  of  an  unlawful 
character  was  at  first  unrestricted.  Afterwards, 
when  the  lawyers  and  judges  had  clothed  such  bodies 
with  the  character  of  an  immortal  person,  statutes 
were  enacted  which  either  specified  the  purposes  for 
which  they  could  be  organized,  or  stated  purposes 
for  which  they  could  not  be  organized.  Whichever 
form  was  adopted,  they  apparently  still  left  the  priv- 
ilege of  incorporation  open  to  all,  provided  the 
objects  proposed  were  such  as  the  law  sanctioned. 

Special  legislation  was  foreign  to  the  ideals  of 
Roman  jurisprudence.  These  demanded  that  all  in 
like  circumstances  should  be  treated  alike.  The 
Twelve  Tables  made  it,  as  regards  public  prosecu- 
tions, at  least,  a  constitutional  rule,  by  the  declara- 
tion :  PRIVILEGIA  NE  IRROGANTO. 

All  societies  and  corporations  were,  from  the  first, 
left  free  to  regulate  their  internal  management  by 
such  by-laws  as  they  might  agree  on,  provided  only 
they  were  not  contrary  to  any  of  the  laws  of  the 
State.2 

Towards  the  end  of  the  republic,  corporations 
had  multiplied  so  greatly  that  the  patricians  became 
seriously  alarmed.  Political  clubs,  and  ward  organ- 

1  Mommsen's  Hist,  of  Rome,  book  in.,  chap.  12 

2  Dig.  xlvii.  22,  de  Collegiis  et  Corporibus,  4. 


FREEDOM   OF   INCORPORATION  147 

izations  of  the  lower  classes,  were  threatening  to 
control  all  elections.  Presidents  (Magistri)  of  some 
of  the  moneyed  companies  were  vying  with  senators 
in  their  style  of  living.  The  companies  of  crafts- 
men must  have  come  in  direct  competition  with  the 
workshops  forming  part  of  the  establishment  of  every 
great  Roman  familia,  and  conducted  by  the  labor  of 
slaves.  Membership  in  these  was  not  confined  to 
those  of  the  same  trade.  It  seems  most  natural  to 
suppose  that  the  merchants  and  physicians  who,  as 
several  inscriptions  testify,  were  on  their  lists,  had 
put  money  into  the  common  stock  as  an  investment, 
from  which  to  receive  dividends  from  the  profits. 
Capital  was  thus  combined  with  labor,  to  render  com- 
petition formidable,  and  no  limitation  on  the  total 
amount  of  the  assets  or  capital  stock  of  a  Roman 
corporation  was  then,  or  ever,  imposed  by  law. 

There  had  been  also  scandalous  jobbery  in  letting 
State  lands  and  State  contracts  to  corporations  in 
which  public  officials  were  shareholders. 

These  causes  combined  to  raise  a  general  cry  of  / 
Down  with  corporations  !  and  a  statute  was  enacted  in 
the  year  64  B.C.,  which  absolutely  dissolved  most  of 
these  organizations,  leaving  only  a  few,  composed 
of  those  engaged  in  manual  labor,  such  as  the  guilds 
of  smiths  and  statuaries.  It  is  probable  also  that 
this  did  not  affect  the  peculiar  form  of  quasi-corpora- 
tions  (publica  societas),  with  a  large  money  capital 
divided  into  shares  (partes,  particulcz)  under  which 
the  public  revenue  was  farmed  and  collected  by  pub- 
licans. Cicero  styled  this  the  "  ornamentum  civitatis 
et firmamentum  reipublicce" 


148  FREEDOM   OF   INCORPORATION 

A  reaction  soon  followed,  and  the  Clodian  law  in 
B.C.  58  revived  most  of  the  charters  which  had  been 
annulled,  and  gave  authority  for  the  foundation  of 
new  corporations  for  many  purposes. 

Under  Julius  Caesar,  a  restrictive  policy  was  again 
pursued,  and  it  became  the  general  law  of  the  empire 
that  no  corporation  could  be  formed  except  for  cer- 
tain specified  purposes.  These  were  few  in  num- 
ber,1 and  even  as  to  those  it  is  not  improbable  that 
those  desiring  incorporation  were  obliged,  in  each 
case,  to  submit  their  scheme  to  the  emperor  for 
approval,  and  receive  what  was  in  effect  a  special 
charter.2 

To  usurp  the  franchise  of  being  a  corporation 
without  due  authorization  was  a  high  crime.3  Not- 
withstanding this,  however,  the  constant  solicitude 
.  of  the  Romans  to  preserve  rights  of  private  owner- 
ship led  to  the  rule  that  upon  the  dissolution  by 
law  of  a  corporation  formed  for  illegal  purposes,  the 
capital  stock,  if  any,  was  to  be  divided  up  among  its 
members.4 

A  similar  right  to  withdraw  his  share  of  the  assets 

1  Dig.  iii.  4,  Quod  cujuscumque  Universitatis  Nomine,  etc.,  i  ;  Dig. 
xxxiv.  5,  de  Rebus  dubiis,  21.     They  were  undoubtedly  more  num- 
erous than  those  specially  mentioned  by  way  of  explanation  in  these 
texts.     There  was,  for  instance,  a  company  of  shipowners  so  highly 
favored  that  by  a  decree  of  Constantine  if  any  member  of  it  died 
intestate  and  without  heirs,  his  property,  instead  of  escheating  to 
the  State,  should  go  "  ad  corpus  naviculariorum  exquofatale  sorte  sub- 
tractus  est"     Code,  vi.  62,  de  Hereditatibus,  etc.,  I. 

2  See  this  point  discussed  in  Mommsen's  de  Collegiis,  etc.,  chap,  iv., 
and  his  Hist,  of  Rome,  book  v.,  chap.  n. 

8  Dig.  xlvii.  22  de  Collegiis,  etc.,  2. 
*  Ibid.  3. 


FREEDOM   OF   INCORPORATION  149 

was  conceded  to  one  who  had  violated  another  of  the 
imperial  constitutions   issued  by  Marcus  Aurelius, 
by  which  it  was  provided  that  no  one  should  at  the  * 
same  time  be  a  member  of  more  than  one  body  hav- 
ing full  corporate  privileges.1 

The  reason  for  imposing  this  prohibition,  if  not 
its  extent,  must  be  considered  doubtful.  Mommsen 
argues  that  it  has  come  down  to  us  in  the  Digest 
out  of  its  proper  connection,  and  must  have  been 
intended  solely  for  funeral  aid  societies;  no  man 
needing  to  provide  twice  for  the  cost  of  his  burial. 
Heinneccius  ventures  the  conjecture  that,  as  many 
of  these  organizations  met  monthly  for  convivial 
purposes,  the  law  was  meant  to  prevent  their  mem- 
bers from  getting  drunk  too  often.  It  would  seem 
more  natural  to  attribute  the  enactment  to  either 
of  three  causes:  (i)  The  corporations  were  so  pros- 
perous, that  their  members  were  becoming  too  rich. 
To  restrain  a  man  to  investment  in  a  single  company 
tended  to  keep  his  accumulations  within  reasonable 
bounds.  (2)  The  political  influence  of  these  organ- 
izations was  a  just  cause  of  complaint.  If  the  same 
man  could  belong  to  several,  he  might  attach  each 
to  his  interests,  or,  at  least,  imbue  each  with  his 
own  views  on  public  affairs.  It  was  in  this  way  that 
Franklin' s  Junto  at  Philadelphia  spread  its  influence 
over  the  whole  city.  Each  member,  or  each  who 
could,  formed  a  new  club  on  the  same  model,  and 
without  telling  his  new  associates  that  he  also  be- 
longed to  the  original  organization,  made  it  his  busi- 
ness to  put  before  them  from  time  to  time,  as  if  they 

1  Dig.  xlvii.,  22  de  Collegiis,  etc.,  i,  §  2. 


150  FREEDOM   OF   INCORPORATION 

had  occurred  to  himself  alone,  all  the  measures  to 
which  that  might  be  committed,  and  engage  them 
in  their  support.1  Whether  secretly  or  openly  at- 
tempted, such  an  extension  of  one  man's  and  one 
society's  influence  was  something  to  be  dreaded  in 
a  government  resting  on  no  more  solid  foundations 
than  that  of  a  Roman  emperor.  (3)  Again,  the 
shareholder  in  a  Roman  corporation  was  often,  if 
not  generally,  an  active  participator  in  the  business 
which  it  conducted,  or  the  trade  to  which  it  apper- 
tained. The  Egyptian  rule,2  that  no  artisan  should 
follow  more  than  one  trade,  because  no  man  can  do 
the  best  work  in  more  than  one,  may  have  been  in 
mind.  " Ne  sutor  supra  crepidam."  So  far  as  the 
societies  or  corporations  of  artificers  were  concerned, 
membership  was  largely  hereditary.  The  general 
rule  was  that  every  man  must  follow  his  father's 
rank  and  trade.  "  Exemplo  senatorii  ordinis,  patris 
originem  municeps  unusquisque  sequatur.  "3  He  must 
also  follow  it  in  the  same  place;  and  if  a  college  of 
workmen  transferred  the  seat  of  their  business  to 
some  new  city,  it  was  at  the  risk  of  being  sent  back, 
together  with  their  children  born  there,  to  their 
original  home.4 

The  general  incorporation  law  which  seems  to  have 
existed  during  the  empire  is  known  only  by  frag- 
mentary references.  The  fullest  of  these  contains 
no  more  than  a  single  section,  which  relates  to  fun- 

1  i  Franklin's  Works,  ed.  1834,  pp.  40,  42. 

2  Wilkinson's  Ancient  Egyptians,  ii.  57. 

8   Cod.  Theodos.  xii.   i,  de  Decurionibus,  101  ;  Dictionnaire  des 
Antiquites,  Collegium,  1295. 
4  Ibid.  xiv.  7,  de  Collegiatis. 


FREEDOM   OF   INCORPORATION  151 

eral-aid  societies.1  Other  sections  probably  con- 
tained similar  provisions  as  to  corporations  formed 
for  other  purposes.  This  seems  to  me  fairly  implied 
from  a  reference  in  the  Digest  to  certain  corpora- 
tions "  quibus  jus  coeundi  lege  permissum  est"  among 
which  are  mentioned  those  of  craftsmen,  since  they 
are  engaged  in  work  necessary  for  the  public  inter- 
est.2 The  authority  of  some  such  statute  is  often 
invoked  by  bodies  of  this  kind  in  dedicatory  inscrip- 
tions, in  phrases  of  description,  applied  to  them- 
selves, as  "Ex  S.  C.  P.  R.  quibus  coire,  conveniri, 
collegiumque  habere  t£ceat,"3or,  more  briefly,  " qidbus 
ex  S.  C.  coire  licet."  Corporations  of  smiths,  ship- 
wrights, builders,  musicians,  castanet  players,  &c., 
&c.,  speak  of  themselves  in  this  fashion.4  It  is  not 
improbable  that  this  statute,  in  its  original  form, 
was  one  of  the  many  Julian  laws.  A  collegium  sym- 

1  This  is  found  on  a  slab  unearthed  at  Lanuvium,  which  probably 
was  placed  over  the  door  of  the  hall  where  such  a  society  was  accus- 
tomed to  meet.     It  is  followed  by  a  copy  of  their  by-laws,  prefaced 
by  a  warning  to  all  those  who  propose  to  become  members  to  read 
these  first,  and  not  to  complain  later  that  they  did  not  understand 
what  they  were,  or  leave  a  controversy  to  their  heirs.     The  by-laws, 
or  " lex  collegi"  are  arranged  in  separate  sections,  and  provide  mi- 
nutely for  the  rate  of  contribution,  the  kind  of  funeral  to  be  furnished, 
and  the  conditions  upon  which  it  was  to  be  obtained. 

2  Dig.  1.  6,  de  Jure  Immunitatis,  5,  12.     Cf.,  however,  Waltzing, 
£tude  Historique  sur  les  Corporations  Professionelles  chez  les  Remains, 
i.  118,  147. 

3  This  is  the  phrase  used  in  the  Lanuvium  inscription.     That  in- 
scription is  given  at  length  in  Giraud's  Novum  Enchiridion  Juris 
Romani,  662,  and  at  the  end  of  Mommsen's  de  Collegiis  et  Sodalidis 
Romanorum. 

*  See  Corpus  Inscriptionum  Latinarum,  x.  1642,  5198 ;  Azuni's  Mar~ 
itime  Law  of  Europe,  i.,  chap.  4,  ad  Jin. 


152  FREEDOM   OF  INCORPORATION 

phoniacorum  is  described  in  an  inscription  on  an 
ancient  columbarium  found  near  Rome,  as  permitted 
to  unite  as  such  "  e  lege  Julia,  ex  auctoritate  Augusti, 
ludorum  causa.' >1  The  privilege  of  incorporation, 
however,  so  far  as  trades  associations  were  concerned, 
was  much  extended  at  a  later  period,  particularly 
under  Alexander  Severus  in  the  third  century.2 

Private  corporations  in  some  form  were  found 
wherever  there  was  a  Roman  city.  Whatever  their 
object  might  be,  the  members  met  together  much 
more  often  than  is  common  in  similar  organizations 
of  the  present  day.  The  officers  apparently  did  not 
engross  the  management  of  affairs  like  the  modern 
board  of  directors. 

The  general  meetings  were  often  of  a  convivial 
character,  even  in  the  case  of  a  burial  club.  In  the 
corporations  of  fellow-craftsmen  there  was  a  strong 
sentiment  of  sodality.  It  was  a  common  thing  in 
the  epitaph  on  a  tradesman's  tombstone  to  speak  of 
him  as  "plus  in  suos,  pius  in  collegium."  3  An  en- 
dowment was  often  held  for  the  perpetual  support  of 
an  annual  banquet  in  honor  of  the  founder.4  In  one 
instance  five  such  feasts  were  provided  for  every 
year.5  A  common  burial  lot  was  often  owned, — a 
practice  still  familiar  in  Europe.6  So  the  gratitude 
of  a  corporation  to  some  one  who  had  been  its  friend 
or  patron  was  often  shown  by  its  assuming  the  per- 

1  Giraud's  Enchiridion,  662. 

2  Dictionnaire  des  Antiquites,  Collegium,  1293. 
8  Duruy's  Hist,  of  Rome,  v.  398. 

4  Corpus  Inscriptionum  Latinarum,  xii.  4393. 
6  Ibid.  x.  444.  6  Ibid.  x.  5386. 


FREEDOM  OF   INCORPORATION  153 

petual  care  of  his  monument.  A  sarcophagus  and 
family  tomb  in  Ephesus  was  left  by  Apollonius,  a 
comptroller  of  the  provincial  revenues,  in  charge  of 
five  designated  colleges,  one  of  which,  at  least,  was 
composed  of  the  freedmen  and  slaves  of  the  emperor; 
and  he  expressly  declared  that  it  should  not  go  to 
his  heirs  as  part  of  his  estate.1 

The  Roman  corporation,  under  the  empire,  as  it 
is  painted  to  us  in  lapidary  inscriptions,  seems  ordi- 
narily to  have  been  composed  of  men  in  quite  mod- 
erate circumstances.  The  government  looked  upon 
them  with  distrust,  on  account  of  their  political  con- 
nections, and  was  slow  to  charter  any  for  objects 
which  did  not  fall  within  the  terms  of  the  general 
statute.  Trajan  was  so  far  under  the  influence  of 
this  feeling  that  he  refused  to  incorporate  a  fire 
company  in  Nicomedia,  though  it  was  especially 
requested  by  Pliny.  Most  of  the  corporations  of 
which  mention  is  made  at  this  period  have  largely 
the  character  of  fraternal  associations  of  those  pur- 
suing the  same  calling,  for  mutual  aid  and  assist- 
ance. The  objects  to  be  promoted  are  rather  the 
good  of  the  members  individually  than  any  common 
enterprise. 

There  existed  the  form  of  the  modern  corporation, 
but  it  was  put  to  but  few  of  the  uses  of  which  it  was 
capable.  The  capital  stock  was  never  represented 
by  certificates  for  transferable  shares  of  the  same 
par  value.  The  paucity  of  such  organizations  for 
the  prosecution  of  large  business  undertakings,  and 
the  slight  importance,  in  respect  to  rights  of  prop- 

1  Corpus  Inscriptionum  Latinarum,  iii.  6077. 


154  FREEDOM   OF   INCORPORATION 

erty,  of  those  of  the  ordinary  type,  is  well  evidenced 
by  the  fact  that  corporation  law,  which  is  so  large 
a  head  of  modern  jurisprudence,  is  not  discussed,  or 
so  much  as  mentioned,  in  the  Institutes  of  Justinian, 
the  work  prepared  expressly  for  use 'as  the  first  text- 
book to  be  put  in  the  hands  of  the  Roman  law 
student. 

The  Digest  gives  it  some  attention,  but  slight  as 
compared  with  that  which  it  receives  in  any  modern 
code.  In  its  treatment  of  the  subject,  it  classes 
with  corporations  partnerships  of  the  nature  of  the 
English  joint  stock  company,  that  is,  those  composed 
of  a  considerable  number  of  persons,  under  an  agree- 
ment that  the  death  of  any  of  them  should  not  dis- 
solve the  organization,  but  his  estate  should  succeed 
to  his  position  in  it.  Under  such  a  form  (societas 
publicd)  the  farmers  of  the  revenue  customarily  asso- 
ciated.1 They  had  a  number  of  these  societies  con- 
ducting operations  in  the  various  provinces.  Each 
had  a  corpus  or  was,  in  law,  an  artificial  person,  but 
all  were  united  in  a  kind  of  "trust,"  with  its  head- 
quarters at  Rome,  under  the  general  management  of 
a  single  man  (magister  societatis  2). 

This  brief  review  of  the  development  of  private 
corporations  among  the  people  whose  invention  they 
were  shows  a  fluctuating  policy  on  the  part  of  the 
government.3 

1  Dig.  iii.  4,  I ;  Dig.  xvii.  2,  pro  Socio,  5,  59. 

2  Heineccius'    Antiquitatum   Romanorum    Syntagma,    iii.    23-27, 

§14- 

8  In  the  Theodosian  Code,  there  are  constitutions  showing  that  the 
ancient  guild  corporations  were  decaying,  and  the  emperors  disposed 


FREEDOM   OF   INCORPORATION  155 

Springing  originally  from  the  free  association  of 
men  engaged  in  the  same  pursuits;  passing  into  the 
definite  form  of  a  distinct  personality,  with  a  certain 
resemblance  to  the  familia,  and  like  that  with  a 
religious  cult  of  its  own  to  bind  it  in  one;  feeling 
the  strength  of  union,  and  commanding  its  influ- 
ence; now  favored  and  now  repressed  by  law, —  these 
Roman  corporations  changed  as  Rome  changed,  and 
there  is  little  in  common  between  those  of  the 
republic  and  those  of  the  Byzantine  empire. 

If  ancient  history  had  been  written  as  modern  his- 
tory is  coming  to  be,  we  should  have  a  clearer  con- 
ception of  their  effect  on  the  social  and  economical 
life  of  their  times.  We  could  well  spare  whole 
books  of  Livy  and  Tacitus,  devoted  to  petty  wars  or 
dull  oratory,  for  some  such  crisp  chapter  as  Green 
or  Taine  in  their  place  might  have  given  us,  on  the 
work  of  associated  capital  and  labor  in  Roman 
trade  and  manufactures.  As  it  is,  much  must  be 
assumed,  on  the  a  priori  method,  and  there  cannot 
but  be  disagreement  between  scholars  in  many  of 
their  ultimate  conclusions.  Waltzing,  the  latest  and 
most  industrious  author  who  has  dealt  with  the  sub- 
ject, is  disposed  to  minimize  the  collective  operations 
of  corporations  under  the  early  empire,  but  gives 
them  a  new  importance  in  its  later  ages.  In  these 
they  became,  as  he  paints  them,  the  gigantic  slaves 
of  the  State.  Functions  that  they  had  at  first 
assumed  freely,  as  a  matter  of  profit  and  contract, 
became  a  grievous  burden  from  which  they  could 

to  prop  them  up.     Lib.  xi v.  2,  de  Privileges  Corporatorum  Urbis  Roma ; 
4,  de  Suarus,  Pecuariis,  et  Suscepioribus  Vint,  ceterisque  Corporatis. 


156  FREEDOM   OF   INCORPORATION 

not  escape.     They  paid  their  taxes,  so  to  speak,  by 
doing  service. 

The  individual  did  this  also,  at  Rome,  as  later 
under  feudalism.  There  was  little  money  in  circu- 
lation, and  little  use  for  it.  The  rich  seldom  bought, 
because  they  or  their  houses  were  the  great  pro- 
ducers. Like  the  New  England  farmer  of  colonial 
days,  they  raised  on  their  own  estates,  for  the  most 
part,  whatever  they  consumed.  The  poor  seldom 
bought,  because  the  government  fed  them,  and 
amused  them  too. 

But  who  was  to  bring  their  bread  to  Rome  ?  The 
great  corporations  early  assumed  the  task,  and  were 
well  paid  for  it.  The  naviculariiy  whose  grain  ships 
were  employed  in  this  business,  were  men  of  means, 
and  soon  became  men  of  position.  Government  con- 
tracts were  as  profitable  then  as  now.1  There  was 
also  a  special  encouragement  to  those  who  engaged 
in  this  business.  It  was  deemed  such  a  public  ser- 
vice that  they  were  exempted  from  rendering  any 
others.  This,  however,  did  not  apply  to  share- 
holders in  such  a  transportation  company  who  took  no 
active  part  in  its  affairs,  and  invested  less  than  half 
their  fortune  in  the  enterprise.2 

Gradually  this  immunity  seems  to  have  been 
turned  into  an  instrument  of  oppression.  Members 
of  a  corporation  in  any  line  of  business,  the  main- 
tenance of  which  was  necessary  for  the  public  inter- 
ests, were  compelled  to  remain  in  it;  and  their 

1  Waltzing,  £tude  Historique  sur  les  Corporations  Professionelles 
chez  les  Romains,  ii.  45,  50. 

2  Dig.  1.  6,  dejure  Immunitatis,  5,  3  ...  6. 


FREEDOM   OF   INCORPORATION  157 

property,  outside  of  their  shares  in  its  capital  stock, 
was,  in  some  instances,  at  least,  subjected  to  an 
implied  hypothecation  for  its  debts.1  They  were 
thus  held  irrevocably  to  the  service  in  which  they 
had  once  engaged.  Their  children  were  enrolled 
with  them  as  members,  and  upon  their  death,  of 
course,  remained  such.2 

The  State  insisted  that  the  public  wants  should 
be  supplied  by  these  public  bodies.  They  must 
now  bring  the  grain  and  bake  the  bread,  not  as  a 
matter  of  mere  adventure  and  contract,  but  of  statu- 
tory duty.  The  individual  life  of  the  members  in 
industrial  corporations  became  largely  merged  in 
the  corporate  life.  If  one  of  them  failed  in  busi- 
ness, his  "college"  must  discharge  his  debts.  If  </ 
one  of  them  committed  a  misdemeanor,  his  college 
might  be  obliged  to  pay  a  fine.3 

Only  a  despotic  government  could  thus  crush  into 
one  a  mass  of  citizens  and  hold  them  together  by  the 
strong  hand.  Private  corporations  in  such  a  posi- 
tion were  really  nothing  but  forms  of  municipal 
government. 

But  as  we  look  at  the  course  of  Rome  towards  her 
purely  municipal  corporations,  composed  of  those 
living  on  the  same  territory,  we  find  it  consistent 
and  liberal.  They  were  treated,  indeed,  with  greater 
favor  under  the  empire  than  under  the  republic. 
Nor  was  this  without  strong  reason.  It  was  by 

1  Code  Theodos.,  14,  3,  de  Pistoribus,  etc.  ;  13,  5,  de  Naviculariis. 

2  Waltzing,  ii.  360. 

8  Code  Theodos.,  16,  4,  de  His  qui  super  Religione  contendunt,  5. 


158  FREEDOM   OF   INCORPORATION 

their  aid  that,  first,  Italy  was  united,  and  then  the 
world  brought  under  the  rule  of  Rome. 

It  was  the  settled  policy  of  the  republic  to  insti- 
tute throughout  its  dominions  the  largest  possible 
number  of  small,  self-governing  municipalities. 
This  tended  directly  to  dissolve  any  sentiment  of  at- 
tachment among  their  inhabitants  to  the  pre-existing 
Italian  confederacies.  It  made  each  city  a  centre, 
and  the  only  centre  to  which  its  people  could  look, 
except  to  Rome  itself.  It  set  up  local  rivalries  where 
there  had  been  local  union.  Nothing  could  have 
tended  more  to  bring  Italy  together.  The  expedi- 
ent, as  Mommsen  says,  was  not  generous,  but  it  was 
effectual.  And  whether  generous  or  not,  it  was  pop- 
ular. It  sent  men  back  to  the  beginnings  of  social 
order  —  to  the  home  rule  of  the  village  community. 

The  emperors  were  wise  enough  to  see  that  this 
same  plan  of  maintaining  and  multiplying  minor 
civic  communities  was  the  best  way  to  reconcile 
the  people  to  absolute  power  at  the  capital.  The 
municipium  and,  to  a  large  degree,  the  colonia,  main- 
tained the  forms  of  republicanism  at  the  important 
centres  of  population,  and  the  inhabitants,  choosing 
their  own  local  magistracy,  and  so  regulating  for 
themselves  the  greater  part  of  their  political  con- 
cerns, hardly  felt  the  pressure  of  imperial  power. 
Britain  was  divided  into  thirty-three  townships  or 
communes,  each  with  considerable  powers  of  home 
rule.  Of  Roman  provincial  cities  there  are  some, 
such  as  Cologne,  Rheims,  and  Lyons,1  which  have 

1  Lyons,  in  Roman  days,  was  the  seat  of  a  number  of  private  cor- 
porations. An  old  inscription  in  the  collections  of  Gruter  speaks  of 


FREEDOM   OF   INCORPORATION  159 

survived  in  almost  unbroken  political  continuity  to 
the  present  day  as  witnesses  to  the  sound  principles 
of  representative  government  upon  which  they  were 
originally  constituted.1 

The  dark  ages  found  Europe  under  the  influence 
of  these  political  ideas;  but  what  were  now  the 
dominant  races,  as  they  swept  down  from  the  North, 
looked  upon  each  walled  city  only  as  another  enemy 
to  conquer  and  destroy.  The  ancient  Germans  con- 

"  omnia  corpora  Ltigduni  licite  coeuntia"  The  character  of  the 
modern  city  as  a  centre  of  socialism  may  find  some  explanation  in 
this  fact. 

1  The  Roman  municipium  was  almost  autonomous.  The  ordinary 
colonia  was  subject  to  the  laws  of  the  mother  country,  which  it  was 
said  to  resemble  in  miniature.  Aulus  Gellius,  in  his  Nodes  Attica, 
lib.  xvi.  cap.  xiii.,  explains  this  very  clearly  "  Municipes  ergo  sunt 
cives  Romani  ex  municipiis,  legibus  suis  et  suojure  utentes,  muneris  tan- 
turn  cum  populo  Romano  honor arii  participes,  a  quo  munere  capessendo 
appellati  videntur,  nullis  aliis  necessitatibus,  neque  ulla  populi  Romani 
lege  adstricti.  .  .  .  Sed  Coloniarum  alia  necessitudo  est :  non  enim  veni- 
unt  extrinsecus  in  civitatem,  nee  suis  radicibus  nittmtur;  sed  ex  civitate 
quasi  propagates  sunt;  etjura  institutaque  omnia  populi  Romani,  non  sui 
arbitrii  habent" 

The  forum,  conciliabulum,  castntm,  and  castettum,  have  sometimes 
been  regarded  as  special  forms  of  Roman  municipal  organization. 
The  first  two  words,  however,  seem  to  be  simply  terms  descriptive  of 
the  historical  origin  of  towns  which  grew  up  around  places  once  used 
as  a  forum  or  a  place  for  consultation  and  debate.  The  magistrate 
who  laid  out  a  new  road,  e.  g.  the  Appian  way,  often  established  upon 
it,  also  under  his  name,  a  market  place  and  seat  of  justice,  e.  g.  Appii 
Fomm,  and  houses  might  afterwards  cluster  about  it  enough  to  con- 
stitute a  village  and  perhaps  to  gain  a  new  name.  Municipal 
privileges  might  then  be  granted,  and  the  inhabitants  invested  with 
Roman  citizenship.  See  Sigonius  de  antiquojure  Italia,  lib.  ii.  cap. 
xv. ;  lib.  iii.  cap.  iii.  On  the  other  hand,  castrum  and  castelhtm, 
like  oppidum  and  vicus,  denoted  places  having  no  peculiar  municipal 
privileges,  but  viewed  simply  as  aggregations  of  inhabited  houses. 
Ibid.  lib.  ii.  cap.  i. 


160  FREEDOM   OF   INCORPORATION 

sidered  it  a  badge  of  servitude  to  live  in  one.  In 
their  own  villages  the  houses  were  scattered  along 
at  a  considerable  distance  from  each  other.  The 
feudal  baron  to  whom  a  subjugated  city  was  assigned 
built  his  castle  out  of  the  ruins  of  its  defences,  and 
laid  down  the  law  for  the  few  inhabitants  who  might 
be  suffered  to  remain  there,  at  his  will.  With  few 
exceptions,  municipal  privileges  were  for  some  cen- 
turies substantially  destroyed,  throughout  all  Europe. 
In  the  Codes  of  the  barbarians  we  find  no  mention 
of  them.  The  praefect,  or  mayor,  is  replaced  by 
the  feudal  lord,  the  comes  civitatis,  or  his  recorder 
(judex),1  and  less  attention  is  paid  to  the  city  than 
to  the  parish. 

It  is  not  till  the  beginning  of  the  eleventh  cen- 
tury that  the  benefits  of  incorporation  seem  to  have 
been  confirmed  or  extended  to  any  organizations 
except  those  belonging  to  the  Church.2  Its  abbeys 
and  monasteries  were  supplemented  by  religious 
fraternities,  some  of  which  came  finally  to  be  any- 
thing but  religious,  and  threw  new  discredit  on  the 
theory  of  corporate  association  for  other  than  gov- 
ernmental objects.  Such  was  that  of  the  Knights 
Templar,  founded  by  a  few  French  crusaders  at 
Jerusalem,  by  the  name  of  the  Poor  Soldiers  of  the 
Temple  of  Solomon,  and  not  taking  the  form  of  a 
corporation  until  long  afterwards. 

Brotherhoods  for  mutual  protection  and  aid  were 

1  Lex  Wisigothorum,  lib.  ii.  31 ;  Rotharis  Leges,  ccxlviii. 

2  The  first  city  charter,  that  to  Leon  in  Spain,  was  granted  in  1020. 
Prescott's  History  of  Ferdinand  and  Isabella,  i.,  xlv. 


FREEDOM   OF   INCORPORATION  161 

common  enough  throughout  the  middle  ages,  but 
they  had  no  special  legal  form  or  personality.  By 
the  side  of  these  frith-guilds  there  grew  up  also  the 
merchant  guilds  in  the  larger  towns,  and  to  them  as 
well  as  to  the  craft  guilds  that  sprang  up  among  the 
wage-earners,  charters  were  often  granted.  Some 
of  these  were  probably  constituted  by  a  revival  or 
continuation  of  a  similar  corporation,  existing  in 
the  same  place  under  the  Roman  laws. 

Henry  III.  of  France  went  farther,  and,  by  gen- 
eral edicts  in  1582  and  1587,  following  the  policy  of 
Alexander  Severus,  legalized  and  directed  the  asso- 
ciation in  every  city,  of  those  engaged  in  each  of 
the  leading  arts  or  trades  in  a  separate  body,  to 
which  he  gave  a  large  regulative  authority,  both  as 
to  workmen  and  merchants.  This  system  stood  for 
two  hundred  years,  but  grew  steadily  more  and  more 
unpopular.  In  Paris  it  had  thrown  the  entire  trade  j 
of  the  city  in  the  eighteenth  century  into  the  hands  / 
of  six  great  corporations  and  forty-four  lesser  ones 
(communautts). 

Wherever,  in  fact,  throughout  Europe,  trades  were 
incorporated,  as  the  very  object  of  incorporation  was 
to  give  a  special  privilege,  and  to  some  extent  rights 
of  monopoly,  and  as  it  often  deprived  the  ordinary 
courts  of  jurisdiction  over  the  members  of  the  new 
body,1  neither  the  common  people  nor  the  higher 
orders  viewed  them  with  favor.  Their  essence  was  J 
the  promotion  of  self-interest  by  a  policy  of  exclu- 
sion. Their  practical  effect  was  to  raise  up  in  each 
city  an  imperium  in  imperio.  They  filled  its  offices, 

1  The  Case  of  Button's  Hospital,  10  Coke's  Reports,  30. 


1 62  FREEDOM   OF   INCORPORATION 

and  obtained  its  sanction  to  whatever  they  thought 
most  for  their  own  benefit.1  Either  alone  or  in  con- 
nection with  the  magistrates,  they  often  succeeded 
in  excluding  the  citizens  at  large  from  the  right  of 
suffrage.2  The  livery  companies  of  London  are  a 
familiar  example  of  this.  It  was  so  in  Scotland 
until  the  era  of  the  Reform  Bill.  The  guild-hall, 
as  to-day,  in  London,  was  the  city-hall.  Tending 
to  oligarchy,  unpopular  in  principle,  bottomed  on 
class  distinction,  they  began  to  fade  away  as  civil 
liberty  entered  upon  its  conquest  of  Europe.  Their 
last  vestiges  were  swept  away  in  France  by  the 
French  Revolution,  and  in  England  few  have  sur- 
vived the  Reform  Bill  and  the  Municipal  Corpora- 
tions Acts  by  which  its  principles  were  finally 
worked  out  into  a  uniform  system.3 

As  the  guilds  declined,  the  great  foreign  trading 
companies  arose. 

Any  such  form  of  organization  had  been  repressed 
by  the  development  of  the  mediaeval  trade-city. 
Each  of  these,  in  truth,  was  one  vast  trading  com- 
pany. It  had  been  an  association  of  traders  before 
it  gained  its  municipal  privileges,  and  it  had  pro- 
cured these  largely  in  order  to  protect  its  trade. 
The  German  conception  of  a  municipal  corporation 
still  was  that  it  only  represented  the  joint  rights 
and  liabilities  of  all  its  inhabitants.  The  Roman 
notion  of  a  collective  body,  with  rights  and  liabili- 

1  Merlin's  Repertoire  de  Jurisprtidence,  vi.  446  et  seq. 

2  Motley's  "  Rise  of  the  Dutch  Republic,"  i.  36. 

8  An  interesting  example  of  the  survival  of  their  political  power, 
though  in  a  greatly  reduced  form,  in  Germany  is  furnished  in  the 
constitution  of  the  legislature  of  the  free  city  of  Hamburg. 


FREEDOM   OF   INCORPORATION  163 

ties  of  its  own,  had  not  yet  been  adopted,  or,  indeed, 
generally  understood.1  It  is,  indeed,  only  of  late 
years  that  Germany  can  be  said  to  have  fully  and 
practically  incorporated  it  into  her  jurisprudence. 
"To-day,"  wrote  Mommsen,  as  late  as  1843,  "pub- 
lic corporations  need  most  urgently  the  rights  of  a 
person,  and  loudly  demand  them ;  but  our  timid  cau- 
tion does  not  know  how  to  interpret  royal  charters 
as  common  utility  requires."2 

The  leagues  by  which  neighboring  cities  in  the 
middle  ages  bound  themselves  to  each  other  from 
time  to  time,  of  which  that  of  the  Hanse  towns  was 
the  most  conspicuous,  were  not  simply  to  strengthen 
their  political  power.  They  were  in  a  certain  sense 
great  commercial  partnerships.  Their  factories  in 
foreign  ports  were  like  the  department  store  of  our 
own  day.  By  the  variety  of  their  stock  and  its 
constant  renewals  they  were  able  to  command  the 
market.  By  their  political  strength  they  could 
obtain  concessions  from  the  local  sovereign  which 
enabled  them  to  dictate  prices  to  his  own  subjects. 
The  Hanseatic  league,  under  the  reigns  of  the 
Henrys,  got  possession  of  the  best  part  of  the  carry- 
ing trade  of  England,  and  by  their  factory  at  Nov- 
gorod3 monopolized  the  commerce  of  northern 
Europe. 

1  Sohm's  "  Institutes  of  Roman  Law,"  §  20. 

2  Treatise  de  Collegiis,   etc.,  119. 

3  Under  the  fostering  care  of  the  league,  Novgorod  grew  from  a 
mean  and  inconsiderable  town  (into  which  it  has  since  relapsed)  to 
be  a  city  of  three  or  four  hundred  thousand  people,  holding  the  trade 
of  Russia  so  firmly  in  its  grip  that  it  became  a  proverbial  expression : 
Quis  contra  decs  et  magnam  Novogordiam  ? 


1 64  FREEDOM   OF   INCORPORATION 

The  decay  of  feudalism  brought  new  strength  to 
every  throne,  because  it  broadened  its  foundations. 
These  were  no  longer  an  artificial  framework  of  mil- 
itary construction,  but  reached  down  to  solid  ground, 
that  is,  the  loyal  consent  of  the  common  people. 
Cities  became  less  necessary  as  a  balance  against 
the  power  of  the  nobles  and  the  Church,  and  their 
privileges  began  to  shrink  and  lessen.  It  became 
the  aim  of  kings  to  make  commerce  a  matter  of 
national  instead  of  municipal  direction. 

Pure  business  corporations,  for  foreign  trade  and 
adventure,  were  now  first  chartered.  To  the  people 
at  large  they  were  generally  odious,  for  they  tended 
to  repress  business  activity  by  the  prohibition  of 
competition. 

They  were  of  two  descriptions,  — the  "regulated 
company"  and  the  joint-stock  company. 

In  those  of  the  former  kind,  the  original  incorpo- 
rators  were  required  to  admit  associates  who  might 
desire  to  trade  within  the  territory  embraced  in  the 
charter,  on  payment  of  a  certain  fee.  The  amount 
of  this  was  generally  left  to  be  fixed  by  the  com- 
pany: sometimes  it  was  regulated  by  the  State. 
Each  member,  whether  one  of  the  original  set  or  a 
new-comer,  traded  separately  for  himself,  on  his 
own  capital,  and  at  his  own  risk.  What  he  got  by 
membership  was  the  right  to  participate  in  the  com- 
merce within  the  jurisdiction  of  the  company,  and, 
in  a  general  way,  to  enjoy  its  protection.  There 
was  no  common  capital  or  stock  in  trade,  except  the 
small  amount  derived  from  entrance  fees. 

The  joint-stock   company,    on    the   other    hand, 


FREEDOM   OF   INCORPORATION  165 

always  had   a  common   stock,  and  its  trading  was 
done  on  joint  account  under  one  management.1 

The  first  of  the  great  trading  companies  was 
incorporated  in  Burgundy  by  the  Duke  of  Brabant, 
in  1248,  by  the  name  of  the  Brotherhood  of  St. 
Thomas  Becket  of  Canterbury.  Its  main  trade  was 
with  England,  and  in  the  next  century  it  trans- 
ferred its  seat  to  that  kingdom,  receiving  a  confirm-  f  3V? 
ation  of  its  privileges  from  Edward  III.,  and  later 
from  Henry  VII.,  who  changed  its  name  to  that  of 
the  Merchant  Adventurers  in  London.2  It  was  a 
"regulated  company,"  and  soon  adopted  a  by-law 
forbidding  any  one  to  trade  in  the  main  ports  in  the 
Netherlands  who  had  not  first  paid  it  an  entrance 
fee  of  over  sixty  pounds.  This  charge  was  deemed 
oppressive,  and  the  by-law  was  abrogated  by  a  special 
Act  of  Parliament.3  A  few  years  later  a  general 
law  was  enacted  that  no  corporation  should  pass  any 
by-law,  without  the  consent  of  three  of  the  great 
officers  of  State.4 

By  the  close  of  the  reign  of  Elizabeth  corporate 
monopolies  had  swept  five-sixths  of  the  foreign  trade 
of  England  into  the  port  of  London,  and  placed  it 
there  in  the  hands  of  two  hundred  men,  shareholders 
in  this  or  that  company  of  merchants.5 

As  new  markets  were  opened  by  discovery  and 
colonization,  new  charters  closed  them  against  all 

1  Adam  Smith's  "  Wealth  of  Nations,"  iii.  book  v.,  chap.  I.  p.  108. 

2  Molloy,  de  Jure  Maritimo,  453.    Later  it  was  known  as  the  Ham- 
burgh Company. 

3  12  Henry  VII.,  chap.  6. 
*  19  Henry  VII.,  chap.  7. 

6  Hume's  Hist,  of  England,  iii.  284. 


1 66  FREEDOM   OF   INCORPORATION 

but  the  favored  few.  The  Russian  Company,  the 
Eastland  Company,  the  African  Company,  the  Levant 
Company,1  and  the  East  India  Company  were  char- 
tered under  Queen  Elizabeth,  and  the  Hudson's  Bay 
Company  followed  in  1670. 2 

All  the  patents  under  which  the  English  colonies 
in  America  were  settled,  beginning  with  that  to  Sir 
Walter  Raleigh  in  1584,  with  which  the  history  of 
North  Carolina  opens,  partook  largely  of  the  same 
character.  That  of  Virginia,  granted  in  1606,  was 
nothing  else,  and  particularly  provides  that  a  Coun- 
cil in  England  shall  have  the  "  superior  Management 
and  Direction  "  of  both  the  proposed  colonies,  by 
a  title  paramount  to  that  of  the  local  council  which 
each  might  set  up  within  its  own  territory.3  In 
other  words,  what  the  charter  termed  First  Virginia, 
or  the  southern  portion  of  the  grant,  and  Second 
Virginia  or  the  northern  portion,  were  to  be  under 
the  ultimate  control  of  a  board  of  directors  sitting 
in  London  or  Bristol. 

The  original  Massachusetts  patent  was  probably 
granted  with  no  thought  on  the  part  of  the  Crown 
officers  that  the  patentees  would  meet  and  hold  their 
courts  of  election  and  management  anywhere  but 
on  the  soil  of  England.  It  was  a  bold  stretch  of 
authority  on  the  part  of  Winthrop  to  transfer  their 

1  This  company  acquired  extensive  interests  in  Turkey,  to  which 
country  it  accredited  consuls  of  its  own  choosing.     It  surrendered 
its  charter  in  1825.     Ann.  Register  for  1825  ;  Hist.  113. 

2  The  Russian  Company,  the  Eastland  Company,  and  the  Turkey 
Company  were  all  "regulated"  companies.     Smith's  "Wealth  of 
Nations,"  iii.  109. 

8  Poore's  "  Charters  and  Constitutions,"  ii.  1890. 


FREEDOM   OF   INCORPORATION  167 

seat  of  government  to  Massachusetts  Bay,  and  no 
one  appreciated  this  more  fully  than  he.  So  far  as 
concerns  the  Plymouth  Colony,  the  commercial  char- 
acter of  the  enterprise  is  even  more  marked.  Its 
promoters,  so  far  as  any  pecuniary  backing  was  con- 
cerned, were  some  seventy  persons  associated  in  a 
partnership  styled  the  "Merchant  Adventurers," 
with  a  capital  of  seven  thousand  pounds,  acting  first 
under  a  grant  from  the  Virginia  Company,  and  then 
under  one  from  the  patentees  named  in  the  charter 
of  1620  for  Second  Virginia,  now,  with  its  limits 
pushed  two  or  three  degrees  further  north,  called 
New  England.1 

The  grants  which  followed  to  the  Duke  of  York 
and  William  Penn,  and  the  Carolina  charters,  were 
still  more  proprietary  in  their  nature. 

Other  European  nations  at  this  time  reached  out 
for  the  control  of  new  markets  by  similar  means. 
Henry  Hudson,  sailing  in  the  service  of  the  Dutch 
East  India  Company,2  whose  charter  preceded  that 
of  the  English  East  India  Company  by  a  few  years, 
laid  the  foundations  of  the  New  Netherlands,  and 
the  port  of  New  Amsterdam  (now  New  York)  was 
soon  in  the  hands  of  another  corporation,  created  to 
promote  American  trade,  the  "  West  India  Company 
of  the  United  Netherlands. "  In  Sweden  a  company 
was  incorporated  for  similar  purposes  in  1624,  which 

1  Palfrey's  "  Hist,  of  New  England,"  i.   187,  216,  221 ;   Poore's 
"  Charters  and  Constitutions,"  i.  992. 

2  This  had  a  capital  of  $3,000,000,  and  the  directors  were  chosen 
on  a  plan  which  gave  the  States-General,  and  also  each  of  the  main 
trading  cities  of  the  Netherlands  a  voice  in  the  selection,  Molloy, 
dejure  Maritime,  454. 


1 68  FREEDOM   OF   INCORPORATION 

resulted  finally  in  the  first  settlements  on  the  Dela- 
ware. Two  years  later  Richelieu,  under  Louis  XIII. , 
chartered  the  Company  of  New  France,  and  gave  it 
title  to  most  of  what  is  now  the  Dominion  of  Canada. 
Under  the  financial  administration  of  Colbert  were 
incorporated  in  1664,  the  Company  of  the  West 
Indies,  that  of  the  Senegal,  and  that  of  the  East 
Indies,  and  in  1669  the  Company  of  the  North.1 
In  1695  the  Scotch  Parliament  gave  a  perpetual  char- 
ter to  the  Company  of  Scotland,  trading  to  Africa 
and  the  Indies. 

How  the  English  companies  were  regarded  at 
the  time,  and  what  their  influence  was  in  the  de- 
velopment of  the  English  law  of  corporations,  may 
best  be  seen  by  quoting  some  observations  made 
by  Defoe,  in  his  Essay  on  Projects,  published  in 
1697. 

"A  while  before  this,"  he  says,  after  describing 
the  introduction  of  the  London  penny-post,  "  several 
people,  under  the  patronage  of  some  great  persons, 
had  engaged  in  planting  of  foreign  colonies,  as 
William  Penn,  the  Lord  Shaftesbury,  Dr.  Cox,  and 
others,  in  Pennsylvania,  Carolina,  East  and  West 
Jersey,  and  the  like  places,  which  I  do  not  call 
projects,  because  it  was  only  prosecuting  what  had 
been  formerly  begun.  But  here  begins  the  forming 
of  public  joint-stocks  which,  together  with  the  East 
India,  African,  and  Hudson  Bay  Companies,  before 
established,  begot  a  new  trade,  which  we  call  by  a 
new  name,  stock-jobbing,  which  was  at  first  only 
the  simple  occasional  transferring  of  interest  and 

1  Voltaire's  Silcles  de  Louis  XIV  et  de  Louis  XV,  iii.  ch.  29. 


FREEDOM   OF   INCORPORATION  169 

shares  from  one  to  another  as  persons  alienated  their 
estates ;  but  by  the  industry  of  the  Exchange  brokers, 
who  got  the  business  into  their  hands,  it  became  a 
trade,  and  one,  perhaps,  managed  with  the  greatest 
intrigue,  artifice,  and  trick  that  ever  anything  that 
appeared  with  a  face  of  honesty  could  be  handled 
with ;  for  while  the  brokers  held  the  box,  they  made 
the  whole  Exchange  the  gamesters,  and  raised  and 
lowered  the  prices  of  stocks  as  they  pleased,  and 
always  had  both  buyers  and  sellers  who  stood  ready 
innocently  to  commit  their  money  to  the  mercy  of 
their  mercenary  tongues.  This  upstart  of  a  trade 
having  tasted  the  sweetness  of  success  which  gen- 
erally attends  a  novel  proposal,  introduces  the  ille- 
gitimate wandering  object  I  speak  of  as  a  proper 
engine  to  find  work  for  the  brokers.  Thus  stock- 
jobbing nursed  projecting,  and  projecting  in  return 
has  very  diligently  pimped  for  its  foster-parent,  till 
both  are  arrived  to  be  public  grievances,  and  indeed 
are  now  almost  grown  scandalous. "  l 

The  exclusive  privileges  held  under  the  proprie- 
tary charters  for  the  American  colonies  occasioned 
much  dissatisfaction  on  the  part  of  English  mer- 
chants, who  wished  to  trade  with  them.  Petitions 
for  their  revocation,  on  payment  of  a  proper  compen- 
sation, were  twice  presented  to  Parliament,  early  in 
the  eighteenth  century,  and  made  the  subject  of 
serious  consideration.  They  were  rejected,  the  last 
in  1715,  but  many  years  later  some  of  these  rights 
were  extinguished  by  purchase,  and  the  heirs  of 

1  "  The  Earlier  Life  and  Works  of  Daniel  Defoe,"  Carisbrooke  Li- 
brary, iii.  42. 


170  FREEDOM   OF   INCORPORATION 

William  Penn  received  on  this  account  a  perpetual 
pension  from  the  British  government.1 

Monopolistic  charters  cannot  be  very  numerous. 
The  subjects  of  monopoly  are  soon  exhausted.  The 
trading  charters,  by  the  close  of  the  seventeenth 
century,  overlapped  each  other  on  every  coast.  As 
many  banks  were  in  existence  at  the  great  commer- 
cial centres  as  it  was  thought  Europe  could  sustain, 
and  each  —  the  Bank  of  Venice,  which  had  already 
flourished  for  five  hundred  years,  and  accumulated 
a  capital  of  $16,000,000,  that  of  St.  George  at  Genoa, 
that  of  Hamburg,  the  Bank  of  England,  the  Bank 
of  Scotland,  the  Austrian  Bank  at  Vienna  —  had  cer- 
tain exclusive  privileges  from  the  State.2  Capital 
was  rapidly  accumulating  throughout  Europe,  and  it 
became  a  subject  of  complaint  that  the  natural  chan- 
nels of  investment  had  been  closed  against  its  free 
circulation.  Nowhere  was  this  felt  more  than  in 
England.  The  demand  for  corporate  franchises  was 
always  in  excess  of  the  supply.  A  continually  in- 
creasing number  had  money  to  invest,  who,  without 
desiring  themselves  to  embark  actively  in  business 
enterprises,  wished  to  put  it  to  productive  use,  and 
yet  where,  at  any  time,  they  could  hope  to  turn  it 
back  into  cash  without  much  delay.  The  result  was 
the  formation  of  many  voluntary  associations  of  the 
nature  of  partnerships,  between  a  considerable  num- 

1  Rogers'  "  Economic  Interpretation  of  History,"  329. 

2  The  Bank  of  Amsterdam  was  a  mere  form  of  municipal  organi- 
zation.    The  city  was  responsible  for  its  deposits,  and  required  all 
large  payments  to  be  made  over  its  counters.     It  had  no  private  cap- 
ital or  stockholders,     i  Douglass'  "  Summary,  &c.,  of  the  Settlements 
in  America,"  106,  note. 


FREEDOM   OF   INCORPORATION  171 

ber  of  individuals,  with  some  distinguishing  com- 
pany name,  such,  for  instance,  as  the  "Amicable," 
or,  as  it  was  afterwards  called,  the  "  Hand  in  Hand  " 
Insurance  company,  which  finally  obtained  a  charter 
in  I7O6.1  Some  of  these  were  successful:  many 
were  not,  and  the  dealings  in  their  shares  brought 
to  a  climax  the  condition  of  things  so  graphically 
described  by  Defoe  in  the  passage  above  quoted.  A 
strong  push  was  made  in  Parliament  for  the  estab- 
lishment of  a  land  bank  in  1696,  which  should  issue 
its  notes  in  exchange  for  mortgages  of  real  estate, 
but  the  ministry  defeated  the  project  by  devising  the 
scheme  of  issuing  Exchequer  bills,  bearing  a  low 
rate  of  interest,  and  payable  out  of  future  revenue. 

Defoe  now  proposed  a  remedy  for  the  stagnation 
of  capital  by  the  establishment  of  fifteen  local  banks 
in  the  nature  of  "factories"  or  commission-houses, 
each  of  which  should  stand  ready  to  make  advances 
on  staple  or  manufactured  goods,  and  act  as  a  ware- 
houseman and  factor  for  their  sale.  But  how  was 
their  incorporation  to  be  effected? 

"Every  principal  town  in  England,"  he  replies, 
"  is  a  corporation  upon  which  the  fund  may  be  settled, 
which  will  sufficiently  answer  the  difficult  and  charge- 
able work  of  suing  for  a  corporation  by  patent  or  Act 
of  Parliament. 

"  A  general  subscription  of  stock  being  made,  and 
by  deeds  of  settlement  placed  in  the  mayor  and 

1  Fire  insurance  was  generally  effected  on  the  mutual  plan ;  marine 
insurance  by  large  syndicates  of  capitalists.  The  city  water  supply 
was  furnished  by  companies  formed  under  royal  patents,  the  earliest 
of  which  dates  from  the  sixteenth  century.  Ashton's  "  Social  Life 
in  the  Reign  of  Queen  Anne,"  50,  53,  86. 


172  FREEDOM   OF  INCORPORATION 

aldermen  of  the  city  or  corporation  for  the  time 
being,  in  trust,  to  be  declared  by  deeds  of  uses,  some 
of  the  directors  being  always  made  members  of  the 
said  corporation  and  joined  in  the  trust,  the  bank 
hereby  becomes  the  public  stock  of  the  town,  some- 
thing like  what  they  call  the  rents  of  the  town-house 
in  France,  and  is  managed  in  the  name  of  the  said 
corporation,  to  whom  the  directors  are  accountable, 
and  they  back  again  to  the  general  court.  For 
example:  Suppose  the  gentlemen  or  tradesmen  of 
the  county  of  Norfolk,  by  a  subscription  of  cash, 
design  to  establish  a  bank.  The  subscriptions  being 
made,  the  stock  is  paid  into  the  chamber  of  the  city 
of  Norwich,  and  managed  by  a  court  of  directors,  as 
all  banks  are,  and  chosen  out  of  the  subscribers, 
the  mayor  only  of  the  city  to  be  always  one ;  to  be 
managed  in  the  name  of  the  corporation  of  the  city 
of  Norwich,  but  for  the  uses  in  a  deed  of  trust  to  be 
made  by  the  subscribers  and  mayor  and  aldermen  at 
large  mentioned.  I  make  no  question  but  a  bank 
thus  settled  would  have  as  firm  a  foundation  as  any 
bank  need  to  have,  and  every  way  answer  the  ends 
of  a  corporation."  l 

Here  we  have  probably  the  first  suggestion  in 
England  of  anything  of  the  nature  of  a  general  in- 
corporation law  for  business  purposes.  One  Act  of 
Parliament,  if  Defoe's  suggestion  had  been  adopted, 
would  have  authorized  the  formation  of  fifteen  differ- 
ent banks,  in  as  many  places,  by  such  persons  as 
might  choose  to  subscribe  the  necessary  capital. 

1  "  The  Earlier  Life  and  Works  of  Daniel  Defoe,"  Carisbrooke 
Library,  iii.  55. 


FREEDOM   OF  INCORPORATION  173 

The  State  would  favor  no  one,  and  name  no  one. 
It  would  simply  allow  money  to  talk. 

The  essential  elements  which  go  to  make  up  a 
moneyed  corporation  are :  a  lawful  object,  a  compe- 
tent fund  devoted  to  that  object,  suitable  persons  to 
direct  its  application,  and  an  artificial  personality 
through  which  they  act. 

A  general  incorporation  law  can  secure  all  these 
with  some  degree  of  certainty,  unless  an  exception 
is  to  be  made  with  respect  to  the  selection  of  suit- 
able managers.  Here  it  must  rely  on  self-interest, 
but  this  rarely  fails  to  answer  the  call.  Those  who 
contribute  the  capital  are  always  anxious  to  protect 
it  by  placing  it  in  the  hands  of  competent  directors, 
if  their  real  object  is  to  make  money  by  the  success- 
ful prosecution  of  the  corporate  business.  It  is  only 
when  their  motive  is  to  give  the  shares  a  fictitious 
value,  and  find  their  profit  in  selling  out  their  hold- 
ings in  the  stock  market,  that  their  choice  is  apt  to 
fall  on  men  of  a  different  class,  rogues,  or  the  dupes 
of  rogues. 

England  was  the  first  country,  after  the  fall  of  the 
Roman  republic,  to  venture  on  the  experiment  of 
authorizing  the  formation,  by  any  who  chose,  of 
moneyed  corporations;  but  she  limited  this  to  cor- 
porations of  a  single  class.  The  dissolution  of  the 
monasteries  and  general  confiscation  of  the  Church 
lands  under  Henry  VIII.  had  taken  away  from  the 
poor  the  means  on  which  they  had  relied  for  no 
small  part  of  their  shelter  and  support.  Some  of 
them  became  common  beggars,  and  others  common 


174  FREEDOM   OF   INCORPORATION 

thieves.  Acts  of  Parliament  were  soon  passed  to 
encourage  the  foundation  of  new  charities  of  the 
nature  of  almshouses  and  workhouses;  but  they 
proved  ineffectual.  Men  would  not  give  largely  for 
such  purposes  unless  they  were  assured  that  what- 
ever they  established  would  remain  in  perpetuity. 
In  1597,*  therefore,  another  statute  was  enacted, 
reciting  the  fact  that  the  want  of  any  grant  of  powers 
of  incorporation  had  prevented  the  former  legisla- 
tion from  having  its  anticipated  effect,  and  provid- 
ing that  during  the  ensuing  twenty  years,  any  one, 
by  a  deed  enrolled  in  the  Court  of  Chancery,  might 
found  "  one  or  more  hospitals,  maisons  de  Dieu,  abid- 
ing-places, or  houses  of  correction,"  and  set  over 
them  such  "head  and  members"  as  he  might  think 
proper,  and  that  every  such  institution  should  be 
incorporated,  and,  being  named  by  the  founder, 
"  should  be  a  body  politic  and  corporate,  and  should 
by  that  name  of  incorporation  have  full  power, 
authority,  and  lawful  capacity  and  ability  to  pur- 
chase, take,  hold,  receive,  enjoy,  and  have,  to  them 
and  to  their  successors  forever,  as  well  goods  and 
chattels,  as  manors,  lands,  tenements,  and  heredita- 
ments, being  freehold,  of  any  person  or  persons  what- 
soever, so  that  the  same  should  not  exceed  the  yearly 
value  of  .£200  above  all  charges  and  reprises. "  The 
founder  was  also  empowered  to  adopt  a  common  seal 
for  the  corporation,  and  it  was  to  have  full  capacity 
to  sue  or  be  sued  in  any  courts.  The  only  condi- 
tion imposed  was  that  the  endowment  must  include 
a  conveyance  of  the  absolute  title  to  real  estate  "  of 
1  39  Eliz.,  chap.  v. 


FREEDOM   OF   INCORPORATION  175 

the  clear  yearly  value  of  ten  pounds."  In  the  next 
reign  this  statute  was  made  perpetual. 

The  scheme  which  it  embodied  amply  provided 
for  every  one  of  the  essential  elements  of  a  moneyed 
corporation.  The  class  of  objects  was  particularly 
specified.  A  competent  fund  was  secured  by  the 
provision  as  to  the  minimum  amount  of  the  founda- 
tion. The  appointment  of  suitable  persons  to  apply 
it  to  the  proper  purposes  was  rendered  reasonably 
certain  by  confiding  it  to  the  founder.  An  artificial 
person  of  the  fullest  description  was  created. 

It  seems  strange  that,  with  this  simple  and  practi- 
cal plan  of  corporate  organization  under  a  general  law 
before  them,  the  English  people  were  content  to  go 
on  from  the  sixteenth  to  the  nineteenth  century  with- 
out giving  it  a  more  extensive  application.  But  the 
English  people  grew  gradually  into  power.  English 
kings  found  in  their  prerogative  of  granting  charters 
of  incorporation  a  cheap  and  ready  way  of  rewarding 
favorites,  or  adding  to  their  own  revenues.  It  was 
not  until  the  accession  of  William  and  Mary,  and 
the  Resolution  of  the  House  of  Commons,  in  1693, 
that  "  it  is  the  right  of  Englishmen  to  trade  in  the 
East  Indies  or  any  part  of  the  world,  unless  pro- 
hibited by  Act  of  Parliament,"  that  such  charters 
lost  their  main  value.  The  Hudson's  Bay  Company 
had  obtained  the  last  great  trading  monopoly  from 
Charles  II.,  and  soon  grew  to  be  almost  as  immense 
a  power  in  northern  America  as  was  the  East  India 
Company  in  southern  Asia.  Such  vast  concerns, 
continually  becoming  more  and  more  imperial  in 
their  character  by  the  advances  of  their  trading-posts 


176  FREEDOM   OF   INCORPORATION 

to  new  frontiers,  as  well  as  by  engaging  in  enter- 
prises outside  of  their  chartered  purposes,  and  build- 
ing up  capitals  without  limit  on  watered  stock,1 
brought  the  very  name  of  corporation  into  disrepute. 
The  unfortunate  issue  of  most  of  the  voluntary  asso- 
ciations formed  for  business  purposes,  at  the  close 
of  the  seventeenth  and  beginning  of  the  eighteenth 
century,  was  a  further  discouragement  to  any  attempts 
to  form  permanent  combinations  of  capitalists.  Of 
the  chartered  companies  also,  several  had  proved 
unsuccessful.  The  African  Company,  chartered  in 
1588,  passed  through  three  successive  reorganiza- 
tions in  the  seventeenth  century,  under  as  many 
charters,  each  on  the  joint-stock  plan.  On  the  last 
occasion,  the  concern  having  failed  with  debts  out- 
standing of  ,£200,000,  a  majority  of  the  stock- 
holders organized  a  new  African  Company,  under 
another  charter  from  the  crown,  buying  up  the  assets 
of  the  old  one  at  their  value,  and  using  the  money 
thus  realized  to  pay  a  forty-per-cent  dividend  to  the 
creditors.  The  result  was  to  leave  the  African  trade 
in  the  hands  of  the  same  persons  who  had  previously 

1  The  Hudson's  Bay  Company  began  business  with  a  paid-in 
capital  of  ,£10,500.  By  a  book-keeping  entry  this  was  trebled  in  1690, 
and  in  1720  it  was  trebled  again,  upon  the  payment  of  only  ten  per 
cent.  During  the  Parliamentary  investigation  which  terminated  in 
the  purchase  by  the  government,  in  1867,  of  its  exclusive  privileges  in 
Canada,  it  appeared  that  its  assets  were  of  the  value  of  over  a  million 
and  a  quarter  pounds  sterling,  its  ordinary  annual  net  profits  being 
£1 10,000.  Winsor's  Hist,  of  America,  viii.  60.  It  also,  early  in  the 
eighteenth  century,  embarked  in  the  business  of  life  insurance  and 
granting  endowment  policies  to  apprentices ;  but  the  courts  pro- 
nounced it  an  illegal  usurpation.  Child  v.  Hudson's  Bay  Company, 
2  Peere  Williams'  Reports,  207  (1723). 


FREEDOM   OF  INCORPORATION  177 

controlled  it,  to  be  conducted  in  the  same  corporate 
name,  and  to  wipe  out  sixty  per  cent  of  their  obli- 
gations.1 They  had  little  better  success,  however, 
under  their  new  name,  and  in  1750  their  franchise 
was  repealed  on  account  of  utter  bankruptcy,  and  a 
"regulated"  company  formed,  by  Act  of  Parliament, 
to  succeed  them,  which  was  expressly  prohibited 
from  trading  in  its  corporate  capacity.2 

The  Scotch  company,  chartered  in  1695,  to  trade 
to  Africa  and  the  Indies,  accomplished  nothing  but 
the  foundation  of  a  short-lived  colony  at  Darien,  and 
the  stock  soon  fell  to  ten  per  cent  of  its  par  value. 
The  shares  were  largely  held  by  persons  of  political 
influence.  Their  support  was  needed  to  carry  through 
the  union  between  England,  and  Scotland  in  1707,. 
and  it  was  secured  by  the  insertion  of  a  clause  in 
the  Articles  of  Union  providing  that  all  the  share- 
holders should  be  repaid  the  full  amount  of  their 
investment  from  the  English  treasury.  The  oppo- 
nents of  the  union  were  not  slow  to  call  this  transac- 
tion "the  selling  of  the  country."  3 

In  1711  the  South  Sea  Company  began  its  singu- 
lar career,  which,  so  far  as  any  foreign  commerce 
was  concerned,  ended  in  1748.*  Its  shares  were  so 
artfully  manipulated,  that,  when  in  1720  the  capital 
was  increased  for  the  purpose  of  funding  the  national 
debt,  by  issuing  its  stock  in  exchange  for  govern- 
ment annuities,  the  final  subscriptions  were  made 

1  Curson  v.  African  Company,  I  Vernon's  Reports,  121. 

2  Smith's  "Wealth  of  Nations,"  iii.  115,  122. 

8  i  Douglass'  "  Summary,  &c.,  of  the  Settlements  in  America,"  45, 
note. 

4  Smith's  "  Wealth  of  Nations,"  iii.  128. 

12 


178  FREEDOM   OF   INCORPORATION 

at  a  premium  of  nine  hundred  per  cent,  and  shares 
thus  taken  at  .£1000,  of  the  par  value  of  .£100,  were 
almost  immediately  sold  at  ,£1200,  in  the  London 
market.1  A  few  weeks  later  the  price  had  fallen  to 
,£135,  and  Parliament  was  busy  in  confiscating  the 
estates  of  the  directors  and  passing  a  bill  to  suppress 
the  "infamous  practice  of  stock-jobbing."  As  the 
doings  of  the  company  were  brought  to  light,  it 
appeared  that  an  over  issue  of  stock,  to  the  amount 
of  half  a  million  pounds,  had  been  made,  to  aid  in 
securing  the  passage  of  the  Act  authorizing  the  last 
increase  of  capital,  ten  thousand  pounds  of  which 
had  gone  to  one  of  the  king's  mistresses.  The  pub- 
lic creditors  who  had  exchanged  their  annuities  run- 
ning for  ninety-nine  years,  for  stock  in  the  company 
to  the  amount  at  par  of  no  more  than  what  would 
have  been  their  receipts  from  the  government  for 
eight  years  and  three  months,  were  forced  to  be  con- 
tent with  a  dividend  of  33^  per  cent,  thus  saving  less 
than  three  years'  income  out  of  ninety-nine.2 

A  general  feeling  of  distrust  now  took  possession 
of  the  public  mind  as  to  all  forms  of  stock  invest- 
ment. The  "Bubble  Act  "  of  1720  was  designed  to 
prevent  the  formation  of  any  companies  for  specula- 
tive purposes,  and  to  a  large  extent  it  was  for  many 
years  successful.  Gradually,  however,  as  a  new  gen- 
eration came  on  the  stage,  the  spirit  of  stock  gam- 
bling revived.  It  became  a  practice  in  London, 
both  of  the  three  incorporated  insurance  companies 
and  of  the  individuals  who  engaged  themselves  as 

1  Swift's  Works,  Nichols'  ed.,  xix.  253,  note. 

2  Mahon's  "  History  of  England,"  i.,  chap.  xi. 


FREEDOM   OF   INCORPORATION  179 

underwriters,  to  offer  to  grant  policies  on  lives  to 
persons  having  no  interest  in  the  life  insured.  When 
George  II.  went  to  Bavaria  in  1743,  to  take  command 
of  his  army  at  the  battle  of  Dettingen,  policies  were 
issued  on  his  life,  at  a  premium  of  twenty-five 
per  cent.  A  few  years  later,  the  same  speculators 
were  writing  policies  on  the  life  of  the  Pretender, 
and  similar  wagers  were  laid  by  their  successors  on 
the  Exchange  or  at  Lloyd's,  on  the  lives  of  other 
public  characters,  until  Parliament  interfered  by  the 
passage  of  the  "  Gambling  Act  "  of  I774-1 

As  early  as  the  thirteenth  century,  there  arose  in 
France  a  practice  of  forming  limited  partnerships, 
one  or  more  of  the  members  of  which  conducted  the 
active  business  and  were  alone  responsible  for  the 
debts,  the  others  simply  contributing  a  certain  cap- 
ital and  risking  nothing  but  that.  Colbert  extended 
it,  and  made  it  the  subject  of  careful  regulation  by 
law,  in  1673.  These  "  socittis  en  commandite  "  offered 
an  attractive  mode  of  investment,  and  came  into 
wide  use  in  other  parts  of  the  Continent,2  though 
never  introduced  into  English  law.  While  without 
the  stability  of  a  corporation,  they  had  most  of  its 
other  advantages,  and  in  addition  were  always  man- 
aged by  those  whose  liability  to  creditors  gave  them 
the  deepest  personal  interest  in  the  success  of  the 
enterprise. 

John  Law,  while  the  South  Sea  Company  was  still 

i  Smith's  "  Wealth  of  Nations,"  Hi.  122. 

8  Their  form  has  never  been  essentially  varied.  Code  de  Com- 
merce, Art.  23;  Law  of  July  24,  1867. 


i8o  FREEDOM   OF   INCORPORATION 

in  possession  of  the  public  confidence  in  England, 
carried  the  notion  of  supporting  public  finance  upon 
private  trading  adventure  across  the  Channel,  and 
found  a  favorable  reception  at  the  French  court.  In 
1718  a  charter  was  granted,  at  his  instance,  to  the 
Company  of  the  West,  and  it  was  endowed  with  the 
whole  valley  of  the  Mississippi,  on  condition  of 
offering  its  stock  of  a  hundred  million  livres,  at  par, 
to«  the  holders  of  the  government  paper  currency, 
which  was  then  at  a  discount  of  over  sixty  per  cent. 
In  a  few  months  it  absorbed  all  the  old  trading  com- 
panies formed  under  Colbert  (into  one  of  which  the 
Company  of  New  France  had  been  merged),  and 
assumed  the  name  of  the  Company  of  the  Indies. 
A  royal  bank,  at  Paris,  with  five  branches  in  other 
cities,  was  also  organized  in  1718,  and  consolidated 
with  Law's  Company  two  years  later.  The  premium 
on  the  Company's  shares  rose  even  higher  than  that 
upon  those  of  the  South  Sea  Company  at  London, 
but  it  soon  flooded  the  country  with  a  new  style  of 
paper  currency  no  better  than  that  which  it  had 
absorbed.  In  May,  1 720,  a  royal  decree  scaled  these 
notes  down  to  half  their  face,  and  a  financial  panic 
followed  which  shook  the  very  foundations  of  society 
and  put  an  end  to  any  extension  of  corporate  under- 
takings in  France  for  the  rest  of  the  century,1 
although  the  Company  of  the  Indies  itself  weathered 
the  storm,  by  the  aid  of  the  government,  and  its 
shares  were  selling  at  more  than  ten  times  their 
par  value  in  I747-2 

1  Voltaire's  Sttcles  de  Louis  XIV  et  Louis  XV,  iii.  chap.  2. 

2  Douglass'  "  Summary,  &c.,"  80,  note. 


FREEDOM   OF  INCORPORATION  181 

There  grew  up,  however,  something  very  like  the 
corporation  in  the  shape  of  a  voluntary  association, 
styled  the  societe  anonyme,  or  socittt  par  actions.  It 
differed  from  other  forms  of  partnership  in  not  bear- 
ing the  name  of  any  of  the  partners,  but  a  company 
name,  indicative  of  the  business  which  it  was  to 
pursue,  and  in  that  the  interests  of  each  member 
were  represented  in  "  actions  "  or  shares,  which  were 
transferable.  The  management  of  its  affairs  was  in 
the  hands  of  one  or  more  common  agents,  who  were 
personally  responsible  for  all  the  debts  of  the  con- 
cern, although  the  rest  of  the  shareholders  were  only 
liable  to  lose  what  capital  they  had  put  in.1 

For  France,  and  indeed  for  any  nation  following 
the  principles  of  the  civil  law,  some  such  modifica- 
tion of  the  partnership  system  was  the  most  natural 
mode  of  advance  towards  the  establishment  of  the 
corporation. 

The  theory  of  partnership  in  England  and  America 
is  that  it  is  a  form  of  agency.  The  firm  is  the  agent 
of  each  member,  with  power  to  bind  him  individ- 
ually to  the  performance  of  its  obligations,  and, 
reciprocally,  each  partner  is  the  agent  of  the  firm 
to  contract  obligations  in  its  behalf  within  the  limits 
of  the  partnership  business.  On  the  other  hand,  the 
Roman  law  and  the  modern  civil  law  recognize  no 
solidarity  between  ordinary  partners  which  would 
render  any  of  them  liable  for  the  acts  or  contracts 
of  another,  who  had  not  had  special  authority  to 
bind  the  rest.2 

1  Merlin,  Questions  de  Droit,  xiv.  323. 

2  See  Pothier,  Traite  du  Contrat  de  Soctitt,  §§  96,  103,  104. 


1 82  FREEDOM   OF   INCORPORATION 

The  socittt  anonyme  of  French  law  was  originally 
a  partnership  conducted  in  the  name  of  one  of  the 
members,  otherwise  styled  a  compte  en  participation. 
The  others  were  strictly  secret  partners.  To  credit- 
ors of  the  firm  they  came  into  no  relation  and  under 
no  liability.  To  the  active  partner  they  owed  an 
obligation  to  make  the  contribution  which  they  had 
agreed  to  make  to  the  capital  of  the  concern,  and, 
furthermore,  if  he  were  held  personally  liable  to 
creditors  to  an  amount  which  the  capital  would  not 
enable  him  to  satisfy,  then  to  contribute  to  indem- 
nify him  for  what  he  might  pay  in  excess  of  the 
capital,  so  that  each  partner  would  sustain  an  equal 
loss.1 

As  thus  used,  the  term  was  applied  only  to  part- 
nerships between  a  few  persons  not  involving  any 
large  enterprise ;  those  embracing  more  persons  and 
formed  for  large  undertakings  being  styled  " com- 
pagnies"'*  Later,  by  a  gradual  change  of  meaning, 
it  came  to  be  used  only  for  such  companies,  with  a 
share  capital,  and  name  descriptive  of  their  object; 
and  this  is  its  signification  in  the  Code  of  Com- 
merce, framed  by  Napoleon  in  i8o/.8 

As  there  described  (Art.  29  et  seq.),  it  is  identi- 
cal with  the  private  business  corporation,  except  that 
it  cannot  be  organized  in  perpetuity.  A  reasonable 
term  of  duration  must  be  fixed  in  the  articles  of 
association. 

By  the  code,  as  originally  adopted,  no  such  asso- 

1  Pothier,  Traite  du  Contrat  de  Socittl,  §§  60-63. 

2  Pardessus,  Coursdu  Droit  Commercial,  iv.  136. 
8  Rogron's  Code  de  Commerce  Expliqut,  15. 


FREEDOM   OF   INCORPORATION  183 

elation  could  thereafter  be  formed  without  the  con- 
sent of  the  government.  That  could  only  be  had 
upon  a  petition  from  the  promoters  of  the  enterprise, 
stating  all  the  particulars  regarding  it,  and  a  report 
from  the  departmental  prefect  on  their  moral  char- 
acter and  pecuniary  responsibility.  This  was  passed 
upon  by  the  executive  authority  of  the  government 
as  an  administrative  measure.  Upon  the  approval 
and  registration  of  the  articles  of  association,  the 
new  company  became  an  artificial  person.  The 
managing  officers  were  not  to  be  responsible  for  its 
debts.1 

These  provisions  have  been  substantially  retained 
ever  since2  in  the  statutes  of  France,  except  that,  in 
1867,  the  requirement  of  the  authorization  of  the 
government  before  the  formation  of  such  an  organ- 
ization was  repealed,  and  in  place  of  this,  regulations 
prescribed  as  to  the  minimum  number  of  original 
incorporators,  the  accumulation  of  a  reserve  fund, 
shareholders'  meetings,  and  other  matters  incidental 
to  the  proper  constitution  and  management  of  such 
a  body.  This  places  France  under  what  is  equiva- 
lent to  a  general  incorporation  law,  applicable  to  all 
kinds  of  business,  save  a  few  specially  excepted.3 

1  Code   of   Commerce,  Arts.   29,   32,  34;   Mourlon's  Repetitions 
JScrites  sur  le  Code  Civil,  iii.  §859;  Merlin's  Repertoire  de  Jurispru- 
dence, xxi.  277. 

2  By  the  law  of  May  23,  1863,  authority  was  given  to  form  a  part- 
nership of  a  similar  character,  without  any  petition  for  a  license,  by 
the    name   of    societe  &    responsabilite   limite'e.      This   was  repealed 
in  1867. 

8  Law  of  July  24,  1867.  Proprietors  of  land  may  also  form  quasi- 
corporations,  for  the  construction  of  works  of  common  benefit.  Law 
of  June  21,  1865. 


184  FREEDOM   OF   INCORPORATION 

Turning  now  to  the  United  States,  we  find  that  in 
most  of  the  American  Colonies  charters  for  private 
corporations  were  occasionally,  and  for  public  corpo- 
rations often,  granted  by  the  Governor.  Such  were 
those  of  the  city  of  New  York,  from  the  Dutch 
Governor,  in  1657, l  and  the  English  Governor,  in 
1686  and  1730. 

He  was  considered  to  speak  for  the  crown  or,  as 
the  case  might  be,  for  the  proprietaries.  Occa- 
sionally the  grant  came  directly  from  the  superior 
authority.2  In  Maryland,  the  city  of  Annapolis  was 
chartered  by  Queen  Anne  in  1708,  but  in  1667 
St.  Mary's  City  was  incorporated  by  a  formal  docu- 
ment running  in  the  name  of  "  Caecilius,  absolute 
lord  and  proprietary  of  the  provinces  of  Maryland 
and  Avalon,  Lord  Baron  of  Baltimore,"  &c.  3  Sev- 
eral of  our  colleges  —  Princeton,  the  University  of 
Pennsylvania,  and  Rutgers  —  had  charters  from  the 
Governor.  Harvard,  Yale,  and  Brown  were  incor- 
porated by  the  colonial  legislatures,  not  without 
grave  hesitation  as  to  their  powers  in  this  respect.4 

1  A  similar  grant  from  Governor  Kieft  in   1644  to  the  settlers  of 
Hempstead  was  upheld  as  a  sufficient  charter  of  incorporation  by  Chan- 
cellor Kent  in  the  case  of  Denton  v.  Jackson,  z  Johnson's  Chancery 
Reports,  320. 

2  Wilson's  Works,  ii.  561,  Andrews'  edition. 
8  3  Eland's  Chancery  Reports,  416,  note. 

4  The  Massachusetts  charter  was  adjudged,  in  1684,  by  the  High 
Court  of  Chancery  in  England  to  have  been  forfeited  by  several  acts 
of  usurpation,  among  which  was  this  incorporation  of  Harvard  Col- 
lege. In  view  of  that  decision,  and  at  the  suggestion  of  Judge  Sewall, 
of  Massachusetts,  when  Yale  College  sought  a  charter  from  Con- 
necticut in  1701,  the  bill  prepared  was  purposely  shorn,  as  far  as 
possible,  of  any  expressions  indicating  that  it  was  what  it  was  meant 
to  be.  Papers  of  the  New  Haven  Colony  Historical  Society,  iii.  413. 


FREEDOM  OF   INCORPORATION          185 

The  founders  of  William  and  Mary,  Columbia,  and 
Dartmouth,  not  caring  to  venture  on  so  doubtful  a 
title,  secured  their  charters  from  the  crown.  Mu- 
nicipal quasi-corporations  were  freely  created  by 
the  colonial  assemblies  from  the  first,  and  in  1639 
Massachusetts  also  ventured  to  incorporate  an  artil- 
lery company,  which  still  exists.  Religious  socie- 
ties for  the  support  of  public  worship  were  also  often 
constituted  corporations  by  special  statutes.1  Con- 
necticut went  much  further  in  1732,  by  granting 
a  perpetual  charter  to  a  society  for  promoting  and 
carrying  on  trade  and  commerce  with  any  of  "his 
Majesties  Dominions,  and  for  encouraging  the 
Fishery,  &c.,  as  well  for  the  common  good  as  their 
own  private  interest. "  2  The  happy  possessors  of  so 
generous  a  franchise,  which  the  "&c."  seemed  to 
make  capable  of  indefinite  expansion,  forthwith  set 
up  business  as  a  land-bank.  The  subscribers  to  its 
stock  paid  for  it  in  mortgages,  on  the  credit  of  which 
the  "  New  London  Society  United  for  Trade  and 
Commerce,  in  Connecticut,"  as  it  styled  itself,  issued 
bills  of  credit,  payable  to  bearer,  in  which  it  was 
recited  that  they  "  Shall  be  in  Value  Equal  to  Silver 
att  Sixteen  Shillings  per  Ounce,  or  to  Bills  of  Pub- 
lick  Credit  of  this  or  the  Neighboring  Governments, 
and  shall  be  accordingly  accepted  by  the  Treasurer 
of  said  Society,  and  in  all  Payments  in  said  Society 
from  time  to  time. "  Currency  of  this  sort  was  set 
afloat  in  a  few  months,  to  the  amount  of  several 
thousand  pounds,  and  of  course  speedily  gravitated 

1  See  Revised  Statutes  of  New  York,  iii.  298,  sec.  12. 

2  Colonial  Records  of  Connecticut,  vii.  390. 


T 86  FREEDOM   OF   INCORPORATION 

below  par,  and,  by  Gresham's  law,  began  to  drive 
the  bills  of  the  Colony  itself  out  of  circulation. 
The  charter  was  granted  in  May,  and  in  the  follow- 
ing February  a  special  session  of  the  Assembly  was 
called  to  remedy  the  usurpation.  It  was  promptly 
resolved  that  stock  paid  for  by  mortgages  was  not 
paid  for  at  all ;  that  the  charter  had  been  forfeited ; 
and  that  it  ought  to  be  and  was  repealed.1  Applica- 
tion having  been  made  at  the  next  session  for  a 
revival  of  the  charter,  with  due  limitations,  the 
question  of  the  power  of  incorporation  which  might 
belong  to  the  Colony  was  brought  up  and  argued  at 
length  by  counsel,  with  the  following  result :  — 

"  On  consideration  thereof,  the  following  questions  were 
put,  and  resolved  as  follows,  (viz :) 

"  i  st.  Whether  it  be  within  the  authority  of  this  govern- 
ment, to  make  a  company  or  society  of  merchants  ? 

"  Resolved,  That  although  a  corporation  may  make  a  frater- 
nity for  the  management  of  trades,  arts,  mysteries,  endowed 
with  authority  to  regulate  themselves  in  the  management 
thereof:  yet,  (inasmuch  as  all  companies  of  merchants  are 
made  at  home  by  letters  patents  from  the  King,  and  we 
know  not  of  one  single  instance  of  any  government  in  the 
plantations  doing  such  a  thing,)  that  it  is,  at  least,  very 
doubtful,  whether  we  have  authority  to  make  such  a  soci- 
ety ;  and  hazardous,  therefore,  for  this  government  to  pre- 
sume upon  it. 

"  2ly.  Whether  it  be  for  the  peace  and  health  of  this 
government,  to  create  such  a  society? 

"Resolved,  That  such  a  society  of  merchants,  whose 
undertakings  are  vastly  beyond  their  own  compass,  and 

1  Colonial  Records  of  Connecticut,  vii.  421. 


FREEDOM   OF   INCORPORATION  187 

must  depend  on  the  government  for  their  supplies  of 
money,  and  must  therefore  depend  on  their  influence  on 
the  government  to  obtain  it,  it  is  not  for  the  peace  and 
health  of  the  government."1 

Provision  was  then  made  for  forcing  the  subscribers 
to  the  stock  of  the  defunct  company  to  contribute 
so  much  as  might  be  necessary  to  redeem  its  bills, 
and  they  were  allowed  to  substitute  mortgages  to 
the  Colony  for  those  given  to  the  company,  receiv- 
ing in  return  Colony  bills,  with  which  to  retire  the 
company  bills.2 

In  Massachusetts  and  New  Hampshire  similar 
companies  were  organized,  at  about  the  same  time, 
by  voluntary  association,  to  put  out  paper  money; 
and  in  1739  two  more  were  formed  in  Massachusetts 
for  the  same  purpose,  one  among  the  merchants 
and  tradesmen,  and  another  among  the  farmers  and 
mechanics,  of  whom  eight  hundred  were  enrolled 
among  its  members.3  Governor  Belcher  opposed 
both  schemes,  and  the  result  was  an  Act  of  Par- 
liament, extending  the  "Bubble  Act"  of  1720  to 
the  Colonies.4  This  prohibited,  under  heavy  penal- 
ties, the  association  of  more  than  six  persons,  with 
a  joint  stock,  who  had  not  been  incorporated  by 
law,  and  put  an  end,  during  the  remainder  of  the 
colonial  period,  to  all  enterprises  of  the  character 
described.5  All  subsequent  organizations  here  on 

1  Colonial  Records  of  Connecticut,  vii.  449. 

2  Ibid.  450. 

8  Sumner's  "  History  of  American  Currency,"  28. 
4  Hildreth's  "  History  of  the  United  States,"  ii.  380. 
6  The  Act  was  repealed  in  1825. 


1 88  FREEDOM   OF   INCORPORATION 

a  joint-stock  plan  sought  a  charter  from  Parliament 
or  the  Crown.1 

During  the  course  of  the  Revolution,  in  1781,  a 
government  bank  was  chartered  by  the  Congress  of 
the  Confederation.  It  was  styled  the  Bank  of  North 
America,  and  its  authorized  capital  put  at  $  10,  ooo,  ooo, 
though  but  a  small  part  of  this  sum  was  in  fact  sub- 
scribed. The  right  of  Congress  to  do  this  was,  to 
say  the  least,  doubtful,  and  it  was  soon  glad  to 
accept  a  charter  from  Pennsylvania. 

In  the  Convention  that  framed  the  present  Con- 
stitution of  the  United  States  it  was  proposed  to 
include  in  the  enumeration  of  the  subjects  of  legis- 
lative power,  that  of  forming  corporations.  Madi- 
son and  Pinckney  both  introduced  resolutions  to  this 
effect,2  but  they  were  smothered  in  committee. 
Madison  afterwards  sought  to  secure  such  a  pro- 
vision at  least  for  the  formation  of  companies  to 
construct  roads  and  canals  connecting  different 
States,  but  his  motion  was  defeated  by  a  vote  of 
eight  States  to  three.  Rufus  King,  in  opposing 
any  general  grant  of  a  power  of  incorporation,  said 
that  the  States  would  be  prejudiced  and  divided  into 
parties  by  it,  and  that  the  public  generally  would  be 
apprehensive  of  mercantile  monopolies.3  The  Bank 

1  Such  was  the  Ohio  Company,  incorporated  in  1749.     When  the 
Susquehanna  Company,  of  Connecticut,  in  1753,  proposed  making  an 
application  for  a  charter,  they  obtained  a  recommendation  from  the 
Colonial  Assembly.     Colonial  Records  of  Connecticut,  x.  378.     In 
Maryland,  no  private  charter  was  ever  granted  prior  to  the  Revo- 
lution.    McKim  v.  Odom,  3  Eland's  Chancery  Reports,  418. 

2  Madison's  "Journal  of  Debates,"  549  (Scott's  ed.). 

3  Ibid.  726. 


FREEDOM   OF   INCORPORATION  189 

of  the  United  States,  which  the  first  Congress  char- 
tered for  twenty  years,  under  the  lead  of  Hamilton, 
on  the  ground  that  other  provisions  of  the  Constitu- 
tion implied  that  right,  and  the  financial  neces- 
sities of  the  country  required  its  exercise,  did  not 
fail  to  justify  Mr.  King's  anticipations.  Its  re- 
charter  afterwards  became  one  of  the  leading  politi- 
cal issues  of  the  day,  and  the  measure  finally 
failed,  because  the  people,  as  a  whole,  were  afraid 
of  it. 

At  the  time  of  these  discussions  in  the  Constitu- 
tional Convention,  an  association  of  merchants  for 
banking  purposes  had  existed  for  several  years  in 
the  city  of  New  York.  Alexander  Hamilton  had 
drawn  their  papers  in  1784.  It  rested  on  nothing 
but  a  partnership  agreement,  and  they  were  com- 
pelled to  wait  for  some  years  before  obtaining  a 
charter  from  their  State.  Seven  years  more  elapsed, 
and  Aaron  Burr  was  applied  to  by  some  capitalists 
who  proposed  to  organize  a  second  bank.  He  did 
not  venture  to  ask  openly  for  such  a  franchise,  but 
had  a  petition  presented  to  the  Legislature  for  the 
incorporation  of  a  company  to  supply  the  city  with 
water.  The  capital  was  to  be  $2,000,000,  and  one 
section  of  the  bill  which  he  prepared  provided  that 
any  surplus,  not  used  in  the  construction  of  the 
water-works,  "  might  be  employed  in  any  way  not 
inconsistent  with  the  laws  and  Constitution  of  the 
United  States,  or  of  the  State  of  New  York."  A 
charter  to  the  "  Manhattan  Company "  was  granted 
in  this  shape  in  1799,  and  the  Bank  of  the  Manhattan 
Company  was  soon  afterwards  established,  and  still 


190  FREEDOM   OF   INCORPORATION 

exists,  though  the  city  had  to  wait  for  other  agencies, 
in  later  years,  to  supply  it  with  water. l 

It  may  be  safely  asserted  that  private  business 
corporations  were  always  viewed  with  disfavor  by 
the  mass  of  the  community  in  every  American 
colony;  and  also  in  the  States  which  succeeded 
them,  until  the  eighteenth  century  came  to  its  close. 
The  influence  of  English  commercial  corporations  in 
engrossing  American  trade  had  rendered  them  justly 
obnoxious  to  the  people,  and  there  was  similar  cause 
of  complaint  against  English  manufacturing  com- 
panies. The  hatting  industry  offers  a  fair  example. 
Beavers  were  originally  so  numerous  here,  that  by 
1731  ten  thousand  beaver  hats  were  annually  made 
in  New  York  and  New  England,  largely  for  export. 
The  Company  of  Feltmakers  of  London  thereupon 
petitioned  Parliament  to  prohibit  the  future  exporta- 
tion of  such  hats.  An  Act  to  that  effect  was  imme- 
diately passed,  which  also  forbade  any  American 
hatter  to  employ  more  than  two  apprentices;  and 
this  remained  the  law  until  the  Revolutionary 
War.2 

The  people  of  Great  Britain,  as  a  whole,  shared 
the  same  sentiments. 

In  1733  Lord  Bathurst,  who,  though  he  had  been 
an  earnest  antagonist  of  the  South  Sea  Company, 
had  had  ample  time  since  its  collapse  to  revise  any 
opinion  he  might  have  formed  during  the  parlia- 
mentary struggle,  wrote  thus  to  Dean  Swift,  who 

1  Parton's  "  Life  of  Aaron  Burr,"  238. 

2  Documentary  History  of  New  York,  i.  761,  note. 


FREEDOM   OF   INCORPORATION  191 

had  asked   his  good  offices   in  regard  to  a  matter 
affecting  a  certain  corporation :  — 

"All  corporations  of  men  are  perpetually  doing 
injustice  to  individuals.  I  will  attend  it,  but  am 
as  much  prejudiced  against  them  as  it  is  possible, 
though  I  know  nothing  of  the  man,  nor  the  matter 
in  question.  I  have  often  reflected  (from  what  cause 
it  arises  I  know  not)  that  though  the  majority  of  a 
society  are  honest  men,  and  would  act,  separately, 
with  some  humanity,  and  according  to  the  rules  of 
morality,  yet,  conjunctively,  they  are  hardhearted, 
determined  villains."1 

Hume,  in  his  "History  of  England,"  published 
some  twenty  years  later,  in  commenting  on  the  times 
of  Henry  VII.,  observes  that  one  check  to  industry 
then  "was  the  erecting  of  corporations,  an  abuse 
which  is  not  yet  entirely  corrected. "  2  Adam  Smith, 
in  his  "Wealth  of  Nations,"  which  appeared  in  1776, 
declares  that  without  a  monopoly  no  joint-stock 
company  can  long  carry  on  any  branch  of  foreign 
trade,  as  its  directors  cannot  be  relied  on  to  give 
it  that  unremitting  care  and  attention  which  indi- 
viduals are  willing  to  bestow  on  their  own  affairs. 
"The  only  trades,"  he  adds,  "which  it  seems  pos- 
sible for  a  joint-stock  company  to  carry  on  success- 
fully, without  an  exclusive  privilege,  are  those  of 
which  all  the  operations  are  capable  of  being  reduced 
to  what  is  called  a  routine,  or  to  such  a  uniformity 
of  method  as  admits  of  little  or  no  variation.  Of 
this  kind  is,  first,  the  banking  trade;  secondly,  the 

1  Swift's  Works,  Nichols*  ed.,  xii.  452. 

2  2  Hume's  Hist,  chap.  26,  p.  256. 


1 92  FREEDOM   OF   INCORPORATION 

trade  of  insurance  from  fire,  and  from  sea  risk  and 
capture  in  time  of  war;  thirdly,  the  trade  of  mak- 
ing and  maintaining  a  navigable  cut  or  canal ;  and, 
fourthly,  the  similar  trade  of  bringing  water  for  the 
supply  of  a  great  city.  ...  To  establish  a  joint- 
stock  company,  however,  for  any  undertaking,  merely 
because  such  a  company  might  be  capable  of  manag- 
ing it  successfully ;  or  to  exempt  a  particular  set  of 
dealers  from  some  of  the  general  laws  which  take 
place  with  regard  to  all  their  neighbors,  merely  be- 
cause they  might  be  capable  of  thriving,  if  they  had 
such  an  exemption,  would  certainly  not  be  reason- 
able. To  render  such  an  establishment  perfectly 
reasonable,  with  the  circumstance  of  being  reduci- 
ble to  strict  rule  and  method,  two  other  circum- 
stances ought  to  concur.  First,  it  ought  to  appear 
with  the  clearest  evidence  that  the  undertaking  is 
of  greater  and  more  general  utility  than  the  greater 
part  of  common  trades ;  and,  secondly,  that  it  requires 
a  greater  capital  than  can  easily  be  collected  into  a 
private  copartnery.  If  a  moderate  capital  were 
sufficient,  the  great  utility  of  the  undertaking  would 
not  be  a  sufficient  reason  for  establishing  a  joint- 
stock  company;  because,  in  this  case,  the  demand 
for  what  it  was  to  produce  would  readily  and  easily 
be  supplied  by  private  adventurers.  In  the  four 
trades  above  mentioned,  both  those  circumstances 
concur."  1 

Similar  opinions  were  generally  held  throughout 
Europe.  The  Abb6  Morellet,  one  of  the  leading 
French  encyclopedists,  and  a  member  of  the  Insti- 

1  Smith's  "  Wealth  of  Nations,"  iii.  book  v.  chap.  i.  pp.  145,  146. 


FREEDOM   OF   INCORPORATION  193 

tute,  had  given  strong  expression  to  them,  and  for- 
tified his  positions  by  statistics  of  the  fate  of  over 
fifty  trading  corporations,  scattered  over  Europe, 
which,  during  the  preceding  hundred  and  fifty 
years,  had  been  formed,  only  to  bring  ruin  to 
stockholders  and  creditors.1 

With  the  single  exception  furnished  by  the  Act 
of  Elizabeth  to  encourage  charitable  foundations, 
which  has  been  described,  no  sovereign  power  in 
modern  times  had  established  anything  in  the  nature 
of  a  general  incorporation  law.  The  privilege  of 
combination  into  a  political  body  clothed  with  the 
attitude  of  perpetuity,  or  at  least  of  duration  for 
a  certain  term,  not  subject  to  abridgment  by  the 
accidents  of  death,  and  whose  obligations  were  dis- 
tinct from  those  of  its  members,  was  universally 
deemed  a  matter  of  too  grave  importance  to  be  left 
free  to  all.  A  special  charter  or  license,  from  the 
crown  or  legislative  assembly,  or  proprietary  lord, 
was  therefore  held  to  be  a  necessary  prerequisite  to 
the  existence  of  any  such  organization.  An  ancient 
custom,  indeed,  might  found  a  prescriptive  title; 
but  only  because  long  usage  implied  an  original 
grant,  although  the  record  or  other  evidence  of  it 
might  be  lost. 

The  radical  change  of  views,  in  the  present  cen- 
tury, which  has  brought  such  laws  into  existence  in 
almost  every  civilized  State,  has  been  the  result  of 

1  The  only  great  company  of  this  kind  which  has  been  conspicu- 
ously successful  in  recent  times,  under  a  monopolistic  charter,  is  the 
Netherlands  Trading  Company,  chartered  in  1824,  with  a  capital 
of  $15,000,000,  and  a  monopoly  of  the  trade  with  the  Dutch  East 
Indies. 

13 


I94  FREEDOM   OF   INCORPORATION 

new  conditions  of  society.  If  these  did  not  first 
appear  on  American  soil,  they  were  certainly  viewed 
there  with  the  least  prejudice  and  appreciated  with 
the  least  difficulty.  Whatever  action  they  called  for 
had  to  encounter  but  slight  opposition  from  tradi- 
tions or  received  opinion,  and  almost  none  from 
vested  interests. 

We  naturally  expect  the  movements  of  a  new 
social  force  to  find  expression  in  law  first  in  new 
governments.  We  now  look  to  Australia  for  experi- 
ments in  legislation.  A  hundred  years  ago,  the 
world  looked  to  the  United  States. 

The  first  general  incorporation  law  of  any  kind 
which  I  have  been  able  to  discover  was  one  enacted 
by  New  York,  in  1784,  to  authorize  the  formation 
of  ecclesiastical  societies  for  the  support  of  public 
worship  in  some  particular  church.1  Pennsylvania, 
in  1791,  adopted  a  similar  measure,  and  extended 
the  same  privileges  to  associations  for  literary  and 
charitable  purposes.  The  articles  of  agreement  by 
which  the  corporation  was  to  be  constituted  were  to 
be  submitted  to  the  Attorney-General  for  examina- 
tion, and  if  he  was  of  opinion  that  they  conformed 
to  the  statute,  he  was  to  certify  this  to  the  Supreme 
Court.  A  like  certificate  of  approval  from  the  Court 
was  also  required,  and  if  obtained,  the  record  of  the 
papers  made  the  associates  a  corporation.2  In  1796, 
another  law  of  New  York  allowed  any  twenty  persons 
who  desired  to  establish  a  public  library,  and  would 

1  The  Revised  Statutes  of  New  York,  iii.  292,  give  this  as  re- 
enacted  and  enlarged  in  1813. 

2  Case  of  St.  Mary's  Church,  7  Sergeant  &  Rawle's  Reports,  528. 


FREEDOM   OF   INCORPORATION  195 

contribute  not  less  than  forty  pounds  for  that  pur- 
pose, to  become  a  corporation  upon  simply  filing 
their  agreement  for  record.1  Vermont,  the  next 
year,  declared  the  inhabitants  of  all  towns,  school 
districts,  parishes,  and  religious  societies  formed 
for  public  worship,  to  be  corporations,  without  any 
further  act  on  their  part.2 

No  harm  having  been  found  to  result  from  legis- 
lation of  this  character,  New  York  took  the  bolder 
step,  in  1811,  of  allowing  any  persons  to  incorpo- 
rate themselves,  by  filing  the  proper  papers  for 
record,  who  desired  to  contribute  capital  for  carry- 
ing on  the  manufacture  of  woollen,  cotton,  or  linen 
goods,  glass,  or  a  few  other  specified  commodities, 
or  engaging  in  ironmongery.3  This  policy  was 
soon  extended  to  other  branches  of  industry  from 
year  to  year,  and  was  followed  before  1850  by  most 
of  the  other  States.  In  an  early  Act  of  this  de- 
scription, passed  by  Vermont,  it  is  worth  remark 
that  among  the  few  occupations  embraced  within 
its  terms  was  the  construction  of  water- works,4  not 
improbably  in  consequence  of  the  opinion  expressed 
in  Smith's  "Wealth  of  Nations,"  which  has  been 
already  quoted. 

The  first  extension  of  this  principle  to  banking 
institutions  was  in  Michigan,  in  1837.  The  result 
was  disastrous.  Of  forty  banks  organized  under 
that  statute,  thirty-six  failed  within  the  next  two 

1  New  York  Revised  Statutes,  iii.  288. 

2  Slade's  "Compilation  of  the  Laws  of  Vermont,"  156,  chap.  14. 
8  New  York  Revised  Statutes,  iii.  310. 

4  Revised  Statutes  of  Vermont,  ed.  of  1840. 


196  FREEDOM  OF  INCORPORATION 

years.     A  similar  lesson  was  taught  by  experience 
in  other  States. 

Gradually  it  has  come  to  be  the  general  American 
policy  not,  as  at  first,  to  enumerate  certain  classes 
of  objects  for  which  the  privilege  of  private  incor- 
poration is  offered,  but  to  throw  it,  with  certain 
specified  exceptions,  open  to  those  proposing  to 
associate  for  any  kind  of  business.  Among  these 
exceptions,  banking,  insurance,  and  all  undertakings 
involving  the  exercise  of  the  right  of  eminent 
domain  are  commonly  included;  but  provision  is 
then  made  for  these  by  separate  laws  of  a  general 
character,  in  which  special  safeguards  are  set  up  for 
public  protection. 

There  are  also  limitations  which  may  be  regarded 
as  implied  in  the  nature  of  things.  Thus  a  power  to 
incorporate  for  any  lawful  purpose  ought  not  to  be 
construed  as  including  authority  to  pursue  that  pur- 
pose by  extraordinary  means,  not  open  to  the  ordi- 
nary citizen,  as  an  individual. 

The  ordinary  objects  of  an  association  for  the 
establishment  of  a  college  of  learning,  for  instance, 
can  be  accomplished  by  the  provision  of  proper 
instruction  and  suitable  buildings  and  apparatus.  It 
is  not  one  of  its  necessary  incidents  that  it  should 
have  power  to  grant  degrees  in  arts  or  science,  and 
thus  confer  upon  their  recipients  a  certain  recognized 
status  in  the  republic  of  letters.  The  academic 
degree  did  not  come  into  existence  until  the  thir- 
teenth century.  There  had  been  great  schools  of 
learning  in  the  ancient  world,  numbering  thousands 
of  students,  and  with  professorships  regulated  and 


FREEDOM   OF   INCORPORATION  197 

supported  by  law;  but  those  who  might  successfully 
pursue  their  full  courses  of  instruction  received 
nothing  but  a  simple  certificate  of  that  fact.  The 
same  thing  was  true  of  the  colleges  and  universities 
that  sprang  up  upon  the  revival  of  learning.  The 
first  collegiate  degrees  of  the  character  with  which 
we  are  now  familiar  were  conferred  by  the  Univer- 
sity of  Paris,  by  authority  of  a  papal  bull  of  Nicho- 
las I.  Their  original  purport  and  object  was  to  grant 
the  recipient  the  right  to  teach  in  any  part  of  the 
world.  The  language  of  the  modern  diploma  is  the 
same.  The  University  of  Paris  conferred  the  privi- 
lege by  an  authority  then  recognized  as  ecumenical. 
The  modern  college  or  university  confers  it  by  per- 
mission of  a  more  limited  authority,  that  of  the  par- 
ticular State  in  which  it  is  incorporated;  but  this 
permission  must  be  distinctly  expressed  by  the  local 
sovereign.  The  University  of  Durham  was  incor- 
porated by  Act  of  Parliament,  and  opened  for  students 
in  1833,  but  it  was  not  until  1837  tnat  it  obtained 
by  royal  charter  the  right  to  grant  degrees.  A 
general  law  authorizing  the  incorporation  of  literary 
institutions  does  not,  therefore,  authorize  the  incor- 
poration of  one  with  power  to  grant  academic  degrees. l 
The  persons  associating  under  such  a  law  could  not, 
as  individuals,  assume  such  a  function,  and  their 
corporate  character  only  enables  them  to  do  as  a 
corporation  what  they  could  before  have  done  with- 
out it,  as  private  citizens. 

It  is  to  be  regretted  that  in  some  of  the   States 
these  principles  have  not  always  been  enforced,  and 

1  Re  Medical  College,  3  Wharton's  Reports,  455. 


198  FREEDOM   OF   INCORPORATION 

that  American  diplomas  from  speculative  colleges, 
formed  under  general  laws,  have  been  sometimes 
made  the  subject  of  bargain  and  sale,  almost  with- 
out disguise.  Such  degrees  are  simply  counterfeits 
of  the  trade-mark  of  learning. 

As  a  guard  against  such  abuses  of  the  law,  it  is 
provided  in  several  States  that  those  desiring  to 
incorporate  themselves  for  any  purpose  must  submit 
their  articles  of  association  to  some  judicial  author- 
ity for  inspection  and  approval.  Where  the  approval 
extends  no  farther  than  to  the  determination  that  the 
papers  are  properly  drawn  and  the  case  one  within 
the  terms  of  the  statute,  this  cannot  be  deemed  a 
delegation  of  legislative  power;  but  it  may  be  other- 
wise where  the  approval  is  a  matter  of  discretion, 
based  on  questions  of  policy  or  expediency.1 

A  provision  of  this  character  formed  part  of  what 
is  believed  to  be  the  first  of  the  long  line  of  Ameri- 
can statutes  throwing  open  incorporation  for  munici- 
pal purposes  to  all  clusters  of  population  on  e^ual 
terms.  This  was  the  Pennsylvania  law  of  1834, 
giving  to  the  courts  of  quarter  sessions,  with  the 
concurrence  of  the  grand  jury  of  the  county,  power 
to  incorporate  any  town  or  village  into  the  form  of 
a  borough.2 

The  scheme  of  government  and  the  extent  as  well 
as  distribution  of  corporate  powers  are  generally 

1  State  v.  Armstrong,  3  Sneed's  Reports,  634 ;  Mayor  of  Morris- 
town  v.  Shelton,  I  Head's  Reports,  24. 

2  The  opinion  of  the  grand  jury  is  not  considered  as  conclusive  as 
to  the  expediency  of  incorporation.     In  re  Incorporation  of  Village 
of  Edgewood,   130  Pennsylvania  State  Reports,  348;    18  Atlantic 
Reporter,  641. 


FREEDOM   OF   INCORPORATION  199 

prescribed  by  the  statute,  and  vary  according  to  the 
number  of  the  population  to  be  affected.  In  two 
States,  cities  having  over  one  hundred  thousand 
inhabitants  may,  under  certain  restrictions,  frame 
charters  for  themselves.1 

Congress  has  imposed  the  policy,  as  respects  both 
public  and  private  corporations,  of  general  incorpo- 
ration laws  on  all  the  Territories.2  It  has  also  fol- 
lowed it  itself  in  establishing  our  present  system  of 
national  banks,  and  in  giving  a  national  character  to 
associations  of  workingmen  having  branches  in  more 
than  one  of  the  States  or  Territories.3  Its  field  of 
legislation  is  so  limited  that,  except  in  the  instances 
which  have  been  mentioned,  it  has  seldom  had  occa- 
sion to  exercise  the  power  of  incorporation  for  busi- 
ness purposes,  but  when  this  has  been  done,  it  has 
taken  the  form  of  a  special  charter. 

• 

More  than  fifty  years  ago  the  principle  of  general 
legislation,  in  regard  to  corporate  organization, 
began  to  pass  into  our  system  of  constitutional 
law. 

Not  inappropriately,  the  first  manifestation  of 
this  tendency  was  in  a  State  whose  institutions  were 
founded  on  the  civil  law.  Article  123  of  the  Consti- 
tution of  Louisiana,  which  was  adopted  in  184$  to 
replace  that  framed  in  1812,  when  the  State  was 
admitted  to  the  Union,  reads  thus:  — 

1  Beach  on  "  Public  Corporations,"  i.  §  42. 

2  U.  S.  Revised  Statutes,  §  1889;  U.  S.  Statutes  at  Large,  vol.  24, 
p.  170. 

8  U.  S.  Statutes  at  Large,  vol.  24,  p.  86. 


200  FREEDOM   OF   INCORPORATION 

"  Corporations  shall  not  be  created  in  this  State  by 
special  laws,  except  for  political  or  municipal  pur- 
poses, but  the  legislature  shall  provide,  by  general 
laws,  for  the  organization  of  all  other  corporations, 
except  corporations  with  banking  or  discounting 
privileges,  the  creation  of  which  is  prohibited." 1 

Iowa  went  a  step  farther  in  her  Constitution  of 
1846,  and  laid  down  the  same  rule  for  both  public 
and  private  corporations.2  The  Constitutions  of 
New  York,  in  1846,  Wisconsin,  in  1848,  and  Ohio 
and  Indiana,  in  1851,  contained  provisions  on  this 
subject  more  or  less  comprehensive,  and  special 
incorporation  laws  have  since  been  prohibited  in  a 
large  number  of  the  other  States. 

The  progress  of  British  legislation  in  this  direc- 
tion may  be  said  to  date  from  the  beginning  of  the 
"Victorian  age." 

A  foundation  had  been  laid,  in  1825  and  1827,  by 
Acts  of  Parliament  conceding  to  workingmen  the 
right  of  association  in  trades-unions,  authorizing 
free  banking  on  a  basis  of  full  partnership  liability,3 
and  repealing  the  Bubble  Act  of  the  preceding 
century. 

The  latter  measures  were  due  to  the  increasing 
pressure  of  capital  seeking  investment  on  the  joint- 
stock  principle,4  and  to  the  evils  which  had  resulted 
from  exclusive  banking  privileges,  particularly  in 
Ireland.  During  the  period  between  1783  and 

1  i  Poole's  "Charters  and  Constitutions,"  721. 

2  Ibid.  546.  8  Act  of  7  Geo.  IV.,  chap.  46. 

4  In  1825,  ^"18,000,000  was  paid  in  by  shareholders  in  various  Eng- 
lish companies.  Annual  Register  for  1825,  Public  Doc.  42. 


FREEDOM   OF   INCORPORATION  201 

1825,  when  the  Bank  of  Ireland  enjoyed  a  complete 
monopoly,  it  opened  no  branches.  The  consequence 
was  that  private  concerns  received  the  country 
deposits,  and  speculated  with  them,  involving  losses 
in  one  year  estimated  at  ,£20, ooo, ooo. l  The  Irish 
Parliament  had  endeavored  to  encourage  legitimate 
enterprises  on  the  principle  of  limited  liability,  in 
1782,  by  adopting  the  device  of  the  societe  anonyme 
in  its  original  form ;  but  it  was  not  to  be  allowed  to 
interfere  with  the  Bank  of  Ireland.  Any  number  of 
persons  might  enter  into  a  partnership  under  the 
name  of  one  of  them  "and  company,"  for  any  kind 
of  lawful  business,  except  banking,  to  endure  for 
not  over  fourteen  years,  and  with  a  capital  of  not 
less  than  .£50,000.  The  partner  whose  name 
was  thus  used  was  to  have  the  sole  conduct  of 
the  business  and  be  liable  for  all  the  partnership 
debts.  The  others,  who  were  styled  "anonimous 
partners,"  risked  only  what  capital  they  originally 
agreed  to  put  in.  The  partnership  articles  were  to 
be  recorded  in  a  public  registry  at  Dublin;  capital 
was  represented  by  transferable  shares ;  and  the  firm 
was  not  dissolved  by  the  death  of  any  of  the  mem- 
bers.2 England  did  not  care  to  follow  this  experi- 
ment in  legislation,  though  it  was  preserved  in  force 
after  the  union  by  a  special  clause  in  the  Joint  Stock 
Companies  Registration  Act  of  1844. 

The  causes  leading  to  the  adoption  of  that  measure 
were  briefly  these.  Many  associations  of  individuals 
under  a  company  name,  which  the  ordinary  people 

1  Daly's  "  Glimpses  of  Irish  Industries/'  66. 

2  Act  of  21  and  22  Geo.  III.;  12  Irish  Statutes  at  Large,  347. 


202  FREEDOM   OF   INCORPORATION 

took  to  signify  the  possession  of  a  charter,  were  trad- 
ing under  a  fictitious  credit  thus  acquired.  Of  the 
few  full  corporations  which  were  in  business  under 
royal  charters,  the  shareholders  in  some  were  liable 
individually  to  an  amount  proportioned  to  their 
stock,  and  those  in  others  were  under  no  liability 
except  that  of  paying  in  the  amount  of  their  actual 
subscriptions.1  Other  companies  which  were  merely 
great  partnerships  (including  most  of  the  larger  and 
more  solid  concerns)  had  been  successful  in  procur- 
ing a  special  Act  of  Parliament,  based  upon  their 
organization  agreement  or  "  deed  of  settlement," 
which,  without  incorporating  them,  authorized  suits 
to  be  brought  by  or  against  the  company  in  the 
name  of  one  of  their  number.2  The  Liverpool  and 
London  Life  and  Fire  Insurance  Company  was  one 
of  these,  and  from  time  to  time  has  secured  succes- 
sive special  Acts  of  Parliament  in  aid  of  its  growing 
business,  each  of  which,  however,  contains  a  special 
proviso  that  it  shall  not  be  deemed  an  act  of  incor- 
poration.3 Important  banking  institutions  existed 
by  a  similar  tenure,  and  those  whose  seat  of  opera- 
tion was  more  than  sixty-five  miles  from  London  were 
issuing  their  notes  for  general  circulation.  Within 
that  limit  the  Bank  of  England  had  obtained  a  mo- 
nopoly. Two  of  the  country  banks,  the  Agricultural 
Bank  of  Ireland  and  the  Northern  and  Central 
Bank  in  Manchester,  were  forced  to  go  into  liqui- 

1  Smith's  "Mercantile  Law,"  41. 

2  Ibid.,  chap.  i.  sec.  7. 

8  Liverpool   Insurance   Co.  v.  Massachusetts,  10  Wallace's   Re- 
ports, 569. 


FREEDOM   OF   INCORPORATION  203 

dation  at  the  outset  of  the  commercial  panic  of  1836. 
Many  others  of  the  large  companies  formed  on  the 
joint-stock  principle  were  shaken,  and  some  fell. 
The  British  public  then  began  to  see  that  existing 
laws  made  no  adequate  provision  for  public  infor- 
mation as  to  the  financial  condition  of  any  of  these 
associations.  A  demand  that  they  should  be  in- 
vested with  definite  franchises  which  the  State  could 
control,  and  for  the  proper  exercise  of  which  they 
could  be  held  fully  responsible,  became  general  in 
the  community.  It  was  a  demand  for  the  protection 
of  creditors  and  investors  against  speculative  and  un- 
substantial organizations,  rather  than  one  for  more 
facilities  for  corporate  organization.1 

An  Act  passed  in  1838  gave  some  slight  relief,2 
but  the  first  general  incorporation  law  was  not 
enacted  until  1844.  This  (the  Joint  Stock  Com- 
panies Registration  Act)  provides  that  no  insurance 
company,  and  no  partnership  for  any  kind  of  busi- 
ness (except  the  construction  of  such  works  as  would 
require  a  special  grant  of  parliamentary  authority), 
with  a  capital  to  be  divided  into  transferable  shares, 
or  with  more  than  twenty-five  members,  shall  there- 
after be  formed  until  articles  of  association,  duly 
executed,  setting  forth  the  proposed  name,  business, 
capital,  stock  subscriptions,  term  of  duration,  and 
other  particulars  which  are  specified,  have  been 

1  Bunyon  on  Life  Assurance,  121. 

2  This  (amending  an  Act  of  4  &  5  William  IV.,  chapter  69)  left 
the  members  of  joint-stock  companies  exempt  from  any  individual 
liability,  and  made  them  quasi-corporations.     Harrison  v.  Timmins, 
4  Meeson  &  Welsby's  Reports,  510. 


204  FREEDOM   OF   INCORPORATION 

put  on  record  in  a  government  registry  office.  It  is 
then  enacted  that  upon  obtaining  a  certificate  from 
the  "Registrar  of  Joint  Stock  Companies"  that  a 
proper  registration  has  been  made,  the  shareholders 
and  their  successors  "  shall  be  and  are  hereby  incor- 
porated as  from  the  date  of  such  certificate  by  the 
name  of  the  company  as  set  forth  in  the  deed  of 
settlement,  and  for  the  purpose  of  carrying  on  the 
trade  or  business  for  which  the  company  was  formed, 
but  only  according  to  the  provisions  of  this  Act,  and 
of  such  deed  as  aforesaid,  and  for  the  purpose  of 
suing  and  being  sued,  and  of  taking  and  enjoying 
the  property  and  effects  of  the  said  company ;  ... 
and  thereupon  it  shall  be  lawful  for  the  said  com- 
pany "  to  do  any  act  ordinarily  incident  to  the  busi- 
ness of  a  corporation,  except  that  no  lands  could  be 
acquired  without  the  license  of  a  committee  of  the 
Privy  Council,  except  as  a  site  for  its  place  of  busi- 
ness. Each  shareholder,  however,  was  made  liable 
as  fully  as  an  ordinary  partner  to  judgment  creditors 
who  could  not  collect  their  demand  from  the  assets  of 
the  company.  Ample  provision  was  made  for  afford- 
ing both  shareholders  and  the  public  full  information, 
from  time  to  time,  of  the  company's  affairs. 

This  statute  has  not  been  construed  by  the  English 
courts  as  giving  the  organizations  which  are  effected 
under  it  the  character  of  a  full  corporation ;  but  it  is 
difficult  to  see  what  of  its  essential  qualities  they  lack. 
Subsequent  Acts  of  Parliament  have  modified  the 
system  thus  inaugurated,  by  allowing  also  the  forma- 
tion of  limited  liability  companies,  the  members  of 
which  risk  nothing  but  the  contribution  to  the  capital 


FREEDOM   OF   INCORPORATION  205 

which  they  originally  agree  to  make  in  payment  of 
their  shares.  Such  a  company  must  add  the  word 
"Limited"  to  its  name.  This  provision  dates  from 
1856;  and  in  1862  the  legislation  on  the  whole  subject 
was  revised  in  the  "  Companies  Act "  of  that  year, 
and  the  organization  of  unsubstantial  enterprises 
rendered  considerably  more  easy. 

There  had  been  a  rush  to  take  advantage  of  the 
Act  of  1844,  and  a  commercial  panic  followed  in  a 
year  or  two.  Similar  results  followed  the  Act  of 
1862.  The  promoters  of  a  new  company,  by  gifts  of 
shares,  hired  a  few  men  of  means  and  prominence 
to  become  directors;  the  arrangement  being  often 
made  through  some  mutual  acquaintance,  who  was 
also  well  paid  for  every  name  he  brought  in. 
Foreigners,  whose  own  country  offered  no  such 
opportunities,  became  promoters  and  purchasers. 
The  stock  of  the  "  London  Bank  of  Scotland, 
Limited,"  was  divided  into  10,000  shares,  and  a 
majority  of  them  were  held  during  one  fortnight  of 
its  early  history  by  six  Greeks,  all  men  of  small 
means,  who  were  brought  into  it  because  three 
leading  merchants  of  their  race  were  to  be  on  the 
board  of  directors.1 

Changes  in  detail  have  since  been  made  in  the  Eng- 
lish statutes,  but  in  substance  they  remain  the  same. 

A  general  banking  law,  with  particular  regulations 
for  the  conduct  of  that  business  and  a  prohibition 
against  the  issue  of  circulating  notes,  was  passed  in 
1858. 

The  English  have  been  unwilling  to  grant  in  terms 

1  Xenos'  Depredations,  263,  316,  335. 


206  FREEDOM   OF   INCORPORATION 

the  privilege  of  complete  incorporation,  as  of  right, 
to  all  who  desire  it,  because  in  their  law  it  has  been 
regarded  as  essential  incidents  of  a  full  corporation 
first,  that  its  personality  is  wholly  distinct  from  that 
of  its  members ;  second,  that  therefore  they  cannot, 
in  fairness,  be  made  liable  for  its  obligations  individ- 
ually ;  and  third,  that  it  can  exercise  every  power  not 
prohibited  by  its  charter.  Coke  had  laid  the  founda- 
tions of  this  doctrine  in  discussing  the  attributes  of 
an  incorporated  hospital,  and  it  has  been  silently 
extended  in  course  of  time  to  corporations  of  every 
class,1  notwithstanding  the  fact  that  a  charitable  insti- 
tution is  sui  generis,  and  is,  in  effect,  only  the  formal 
expression  of  an  equitable  trust.2 

A  striking  instance  of  its  practical  effects  may  be 
found  in  the  history  of  the  British  Linen  Company.  It 
was  chartered  in  1746  for  the  manufacture  of  linen, 
the  stockholders  to  be  under  *no  individual  liability 
for  its  debts.  It  soon  added  banking  to  its  manufactur- 
ing business.  The  latter  was  afterwards  abandoned, 
but  the  corporation  still  exists  in  active  operation  as 
a  bank. 

The  American  courts,  untrammelled  by  English 
precedent,  have  proceeded  on  the  theory  that  corpo- 
rations have  no  powers  which  have  not  been  granted 

1  Case  of  Button's  Hospital,  iv.  Coke's  Reports,  23,^0,  b;  So- 
ciety of  Practical  Knowledge  v.  Abbott,  2  Beavan's  Reports,  559 ; 
Pollock's ^  Principles  of  Contract,  119,  and  note  D,  in  appendix. 

2  Savigny  would  limit  the  use  of  the  term  "  corporation  "  so  as 
to  make  it  exclude  charitable  foundations  altogether.      To  English 
and  American  minds  there  is  no  difficulty  in  regarding  a  charitable 
corporation  as  a  trustee  of  its  funds  for  the  benefit  of  the  charitable 
objects  prescribed. 


FREEDOM   OF   INCORPORATION  207 

to  them  either  expressly  or  by  reasonable  implica- 
tion; that  it  does  not  deprive  them  of  their  proper 
character  to  make  it  part  of  their  original  constitu- 
tion that  their  creditors  may  resort,  to  any  extent 
which  the  law  may  prescribe,  to  the  members  indi- 
vidually ;  and  that  in  enforcing  the  duty  of  the  cor- 
poration to  the  public,  and  sometimes  in  determining 
the  absolute  rights  of  its  members,  as  such,  between 
themselves,  its  artificial  form  can  be  disregarded,  and 
it  can  be  held  bound  by  the  acts  of  all  its  members.1 
This  difference  between  English  and  American  law 
serves  in  great  measure  to  account  for  the  freer  hand 
with  which  corporate  franchises  have  been  offered 
here  to  all  who  wish  them,  on  equal  terms. 

Turning  now  to  the  modern  development  of  cor- 
porations in  Europe  generally,  we  find  that  early  in 
the  century  the  societt  anonyme  in  its  later  form,  as 
remoulded  in  the  Code  Napotton,  following  the  French 
arms,  spread  with  the  principles  of  that  code  over 
Southern  Europe. 

Belgium  anticipated  France  by  repealing  the  re- 
quirement of  official  authorization.  This  was  effected 
there,  with  the  aid  of  subsequent  judicial  inter- 
pretation, by  the  revolutionary  decree  of  October  16, 
1830,  declaring  that  "  impediments  to  the  liberty  of 
association  are  infractions  of  individual  and  political 
liberty."2 

A  year  later  Brazil  adopted  the  same  policy,  and 

1  State  v.  Standard  Oil  Company,  49  Ohio  State  Reports,  137  ; 
30  Northeastern  Reporter,  279 ;  Woodbridge  v.  Pratt  &  Whitney  Co., 
69  Conn.  Reports,  304. 

2  Rogron,  Code  de  Commerce  expliqut,  1 5. 


208  FREEDOM   OF   INCORPORATION 

although  its  abuse  by  those  engaging  in  the  banking 
business  caused  a  return  to  the  old  order  of  things 
a  few  years  later,  in  1882  absolute  freedom  of  incor- 
poration was  again  established,  except  for  a  few 
specified  objects. l 

Germany  followed  the  example  of  France  in  1870. 
It  was  to  arm  herself  against  her  with  her  own 
weapons,  for  the  struggle  upon  which  they  were 
about  to  enter.  Capital  was  to  be  mobilized  as  well 
as  troops.  The  law  passed  in  June  of  that  year  by 
the  North  German  Confederation,  soon  to  become 
the  new  Empire,  reproduced  the  main  features  of  the 
French  law  of  1867,  though  the  familiar  designation, 
elsewhere  generally  adopted,  of  nameless  society 
(soci&  anonyme),  was  replaced  by  that  of  shares- 
society  (Aktiengesellschaft).  The  speculative  fever 
which  accompanied  and  followed  the  war,  found  in 
this  measure  an  effective  support.  Companies  were 
organized  on  insufficient  capital,  a  considerable  por- 
tion of  which  were  soon  forced  into  liquidation.2  This 
led,  in  1884,  to  another  law  of  the  empire,  adding 
new  safeguards,  particularly  against  the  rapacity  and 
frauds  of  promoters.  The  interests  of  minority  stock- 
holders were  also  given  further  protection,  and  reg- 
ulations prescribed  for  partnerships  en  commandite 
{Kommanditgesellschaften  auf  Aktien),  under  which 
the  partners'  shares  were  made  transferable.  The 
benefits  of  free  incorporation  on  favorable  terms  were 
extended  to  registered  co-operative  and  mutual  aid 

1  Annuaire  de  Legislation  £trangtre,  for  1882,  pp.  1080,  1082. 

2  Annuaire  de  Legislation  £trangtre,  for  1885,  p.  98  ;  "  Handworter- 
buch  der  Staatswissenschaften,"  i.  Aktiengesellschaften,  iii. 


FREEDOM   OF   INCORPORATION  209 

societies  (Genossenschaften)i  in  1889,  and  three 
years  later  to  all  who  desired  to  engage  in  business 
of  any  kind,  on  a  footing  of  limited  liability.  The 
shares-society  was  calculated,  mainly,  for  large  under- 
takings. Its  stock  was  ordinarily  distributed  among 
numerous  holders,  and  its  business  was  often  of  a 
kind  in  which  the  general  interest  of  the  community 
might  be  concerned.  The  law  had  therefore  required 
a  certain  publicity  to  be  given  to  their  affairs,  which 
was  needless  and  annoying  in  case  of  a  small  business 
in  the  hands  of  a  few  men.  These  could  act  more 
effectually  if  the  corporate  form  were  reduced  as 
nearly  as  might  be  to  the  likeness  of  a  partnership. 
The  law  of  1892  did  this  by  allowing  the  formation  of 
limited  partnerships,  with  transferable  shares  {Gesell- 
schaften  mit  beschrdnkter  Haftung).  They  may  have 
an  ordinary  firm  name,  made  up  of  those  of  the  in- 
dividual members,  or  one  descriptive  of  the  business, 
but  in  either  case  the  words  above  quoted  to  indi- 
cate limited  liability  must  be  added  to  it.  Such  a 
body  is  not  formally  declared  to  be  an  artificial  person, 
but  it  has  all  the  essential  attributes  of  one.  (Art.  13.) 
Each  partner  at  the  outset  holds  one  share  and  one 
only.  Its  amount  is  that  of  his  agreed  contribution 
to  the  capital,  so  that  the  shares  may  differ  widely  in 
their  par  value.  Subsequently  they  may  be  divided, 
but  only  by  a  general  vote  of  all. 

The  result  of  the  law  of  1892  has  been  greatly  to  re- 
duce the  number  of  the  shares-societies,  capitalists  pre- 
ferring the  new  form  of  association  because  of  the 
greater  privacy  with  which  its  affairs  can  be  conducted.1 

1  Annuaire  de  Legislation  £trangtre>  2ist  year,  154. 
14 


210  FREEDOM   OF   INCORPORATION 

Hungary  adopted  the  system  of  free  incorporation 
for  ordinary  business  purposes  in  1875,  Italy  in  1882, 
and  Spain  in  1885.  The  Swiss  Confederation  incor- 
porated it  into  their  Code  of  Obligations  (Art.  612, 
et  seq.)  in  1883,  excluding  from  its  benefits  banks 
and  insurance  companies.  It  may  indeed  be  said  to 
be  the  general  rule  of  Europe,  Austria  and  Russia 
being  the  only  considerable  powers  which  have  not 
given  it  their  adhesion.1 

Canada  still  holds  to  the  principle  of  governmental 
authorization  in  each  case,  but  by  the  "  Companies 
Act"  of  1886  allows  the  Governor  in  Council  to 
grant  charters,  on  written  application,  for  any  busi- 
ness purpose  except  those  of  railroads,  banking,  and 
insurance.  Hawaii  has  a  law  quite  similar.2 

So  far  as  concerns  municipal  corporations,  the 
world  at  large  has  not  been  ready  to  follow  the 
American  lead.3 

Perhaps  no  country  is  so  situated  politically  that  it 
could  follow  it  with  safety  to  its  institutions.  If  there 
be  one,  it  is  Great  Britain,  but  she  is  held  back,  both 
by  what  might  be  its  effects  upon  her  system  of  par- 
liamentary representation,  and  by  what  they  would 

1  Annuaire  de  Legislation  gtrangtre,  I4th  year,  99. 

2  Civil  Code  of  1897,  chap.  127. 

8  The  Prussian  laws  for  the  government  of  country  communities 
(the  Kreisordnung  of  1872,  and  Landgemeineordnung  of  1891),  to  a 
certain  extent  look  in  the  direction  of  free  incorporation.  They  con- 
template the  formation,  in  certain  cases,  of  new  communities,  or  com- 
munal unions  by  grouping  together  several  previously  existing,  by  the 
action  of  the  local  and  provincial  authorities  ;  but  this  is  only  justi- 
fied when  the  united  communities  were  separately  too  weak  to  support 
the  necessary  public  burdens. 


FREEDOM   OF   INCORPORATION  211 

be  as  to  the  inhabitants  of  the  particular  district 
respecting  which  incorporation  might  be  obtained. 
While  since  1835  she  has  had  in  operation  a  uniform 
scheme  of  municipal  government,  municipal  incor- 
poration is  still  by  special  charter  in  each  case.  The 
Reform  bill  of  1832  created  a  number  of  new  bor- 
oughs for  the  purpose  of  parliamentary  elections, 
without  making  them  self-governing  municipalities. 
Manchester  did  not  secure  a  charter  until  1838, 
though  she  then  had  a  quarter  of  a  million  inhabi- 
tants. Newcastle  until  nearly  the  same  time  had  no 
other  than  one  early  granted  by  the  bishop  of  Dur- 
ham. The  Municipal  Corporations  (Consolidation) 
Act  of  1882  went  no  further  than  to  allow  the  inhabi- 
tants of  any  town  or  district  to  petition  the  queen  for 
incorporation  as  a  borough,  and  to  authorize  such  a 
grant  to  be  made  upon  a  favorable  report  from  a 
committee  of  the  Privy  Council.  In  1888,  however, 
the  "  Local  Government  Act "  took  a  half  way  step 
towards  the  adoption  of  the  American  system  of  vol- 
untary incorporation,  by  providing  that  cities  and 
towns  having  not  less  than  fifty  thousand  inhabitants 
shall  ipso  facto  be  distinct  counties  for  administrative 
purposes,  the  duties  properly  pertaining  to  County 
Councils  being  performed,  in  every  such  case,  by  the 
municipal  council. 

Differences  of  legal  theory  as  to  the  inherent  attri- 
butes of  a  municipality  have  also  had  great  weight. 

In  England  the  view  taken  by  the  courts  as  to  the 
extent  of  corporate  powers,  which  has  already  been 
noticed,  extends  to  municipal  corporations,  and  in  the 
absence  of  prohibitions,  they  occupy  much  the  posi- 


212  FREEDOM   OF   INCORPORATION 

tion  of  a  natural  person  as  to  the  acquisition  and 
disposition  of  property,  and  can  do  almost  anything 
which  is  not  a  direct  invasion  of  private  right.1  The 
same  doctrine  is  practically  applied  to  them  in  Europe 
generally,  and  we  need  not  be  surprised  that,  wher- 
ever it  obtains,  they  are  created  only  by  special 
charter  in  each  particular  case,  under  the  conviction 
that  there  is  too  much  danger  in  their  possibilities  to 
make  it  safe  to  do  otherwise. 

The  rule  universally  prevailing  in  the  United 
States  that  a  municipal  corporation,  in  addition  to 
the  powers  with  which  it  is  specially  invested  by  the 
statute  law,  has  by  implication  only  such  as  are 
essential  to  the  proper  exercise  of  those,  or  necessary 
to  attain  the  declared  objects  of  incorporation,  has 
led  us  naturally  to  a  different  result. 

European  history  has  also  taught  the  lesson  that 
municipal  corporations  are  apt  to  come  under  the 
influence  of  particular  classes  of  their  inhabitants, 
organized  for  purposes  of  mutual  aid  and  protection ; 
and  the  extent  of  their  powers  under  European  law 
renders  any  perversion  of  them  for  class  purposes 
doubly  pernicious.  We  have  seen  how  this  was  true 
of  the  mediaeval  trade  guild.  In  recent  times,  trades- 
unions  and  socialistic  organizations  have  made  their 
power  felt  in  a  similar  way,  but  not  always  with  the 
same  results.  They  naturally  seek  to  promote  their 
own  views  and  objects  by  direct  means,  wherever  the 
road  is  plain.  Thus,  for  instance,  in  London,  the 
trades-unions  have  made  it  a  general  feature  of  all 
city  contracts  for  the  erection  of  public  buildings  that 

1  Kyd  on  Corporations,  i.  108,  182. 


FREEDOM   OF  INCORPORATION  213 

the  contractor  shall  pay  "the  rates  of  wages  mutually 
agreed  upon  by  the  Central  Association  of  Master 
Builders  of  London,  and  the  London  Building  Trade 
Federation."  But  instead  of  inclining  steadily  towards 
paternalism,  it  is  often  found  that  a  city  controlled 
by  labor  organizations  is,  in  certain  directions,  held 
back  from  it.  Appropriations  for  the  relief  of  the 
poor,  sick,  or  unemployed  are  discouraged,  from  the 
feeling  that  they  should  be  left  to  insure  themselves 
against  want  by  membership  in  some  appropriate 
mutual  benefit  society,  under  the  principle  that  the 
sale  of  labor  must  be  wholly  controlled  by  organized 
labor.  Such  has  been  the  recent  municipal  history 
of  socialism  in  France  and  Belgium.1 

Advancing  standards  of  human  comfort  and  a 
growing  sentiment  of  municipal  solidarity  are,  on  the 
other  hand,  impelling  cities  everywhere  to  undertake 
new  functions  for  the  good  of  the  citizen.  They 
demand  the  right  to  pull  down  unsanitary  tenement 
houses,  and  replace  them  by  public  ones ;  to  estab- 
lish savings  banks,  and  pawn  shops;  to  engage  in 
great  public  works,  even  to  the  extent  of  reversing 
their  natural  geographical  environment,  as  in  the  case 
of  the  Manchester  ship  canal ;  to  erect  cold  storage 
warehouses  for  the  convenience  of  importers ;  2  to 
furnish  power  to  manufacturers;  to  become  manu- 
facturers themselves. 

The  European  city  possesses  far  greater  powers 
than  the  American,  but  it  is  also  subject  to  a  far 

1  Annals  of  the  American  Academy  of  Political  and  Social  Science, 
viii.  208,  217. 

2  Manchester  has  done  this  also,  on  a  large  scale. 


214  FREEDOM   OF   INCORPORATION 

more  stringent  supervision  by  the  State.  The  ad- 
ministrative side  of  government  is,  in  theory  at  least, 
little  regarded  by  us.  As  to  municipal  affairs,  it  is 
all  important  in  the  rest  of  the  world.  This,  co- 
operating with  economic  conditions  incident  to  the 
historical  development  of  the  nation,  has  led  almost 
everywhere  in  Europe  to  the  regulation  of  municipal 
government  by  general  laws,  reserving  to  the  State 
large  powers  of  intervention,  to  an  extent  hardly 
equalled  yet  in  the  United  States.  Under  the  munici- 
pal code  of  Austria,  for  instance,  the  government,  in 
1895,  upon  the  election  of  a  mayor  of  Vienna  who 
was  unsatisfactory  to  the  emperor,  dissolved  the 
city  council  and  assumed  the  administration  of  all 
the  affairs  of  the  municipality  by  an  imperial 
commissioner. 

The  drift  of  workingmen's  associations  and  trades- 
unions,  both  in  Europe  and  in  America,  is  towards 
the  advocacy  of  larger  home  rule  for  the  municipality, 
and  less  State  interference  with  its  concerns.  The 
ordinary  wage-earner  comes  closer  to  the  city  council 
than  to  the  State  legislature.  Many  of  the  "  labor" 
leaders  favor  a  transfer  to  the  municipal  corporations 
of  a  large  share  of  the  powers  of  government,  even  as 
to  affairs  of  general  concern  to  the  nation. 

The  commune  movement  which  succeeded  the  fall 
of  Louis  Napoleon,  had  for  its  avowed  object  the 
government  of  the  French  people  through  the  local 
communes.  The  national  government  was  to  have  as 
few  powers  as  possible.  France  was  to  be  a  mere 
confederacy  of  36,000  communes. 

It  is  worth  remark  that  in  Milton's  "  Ready  and 


FREEDOM   OF   INCORPORATION  215 

Easy  Way  to  establish  a  Free  Commonwealth,"  he 
sketched  in  outlines  a  similar  plan  for  England. 
Every  county,  he  says,  should  be  made  — 

"  a  kind  of  subordinate  commonalty  or  commonwealth,  and 
one  chief  town  or  more,  according  as  the  shire  is  in  circuit, 
made  cities,  if  they  be  not  so  called  already,  where  the 
nobility  and  chief  gentry,  from  a  proportionable  compass  of 
territory  annexed  to  each  city,  may  build  houses  or  palaces 
befitting  their  quality,  may  bear  part  in  the  government, 
make  their  own  judicial  laws,  or  use  these  that  are,  and  exe- 
cute them  by  their  own  elected  judicatures  and  judges 
without  appeal,  in  all  things  of  civil  government  between 
man  and  man  ;  so  they  shall  have  justice  in  their  own 
hands,  law  executed  fully  and  finally  in  their  own  counties 
and  precincts,  long  wished  and  spoken  of,  but  never  yet 
obtained ;  they  shall  have  none  then  to  blame  but  them- 
selves, if  it  be  not  well  administered,  and  fewer  laws  to  ex- 
pect or  fear  from  the  supreme  authority ;  or,  to  those  that 
shall  be  made  of  any  great  concernment  to  public  liberty, 
they  may,  without  much  trouble  in  these  commonalties,  or 
in  more  general  assemblies  called  to  their  cities  from  the 
whole  territory  on  such  occasion,  declare  and  publish  their 
assent  or  dissent  by  deputies,  within  a  time  limited,  sent  to 
the  grand  council ;  yet  so  as  this  their  judgment  declared, 
shall  submit  to  the  greater  number  of  other  counties  or 
commonalties,  and  not  avail  them  to  any  exemption  of 
themselves,  or  refusal  of  agreement  with  the  rest,  as  it  may 
in  any  of  the  United  Provinces,  being  sovereign  within  it- 
self, ofttimes  to  the  great  disadvantage  of  that  union.  .  .  . 
Nothing  can  be  more  essential  to  the  freedom  of  a  people, 
than  to  have  the  administration  of  justice,  and  all  public 
ornaments,  in  their  own  election  and  within  their  own 


216  FREEDOM   OF   INCORPORATION 

bounds,  without  long  travelling  or  depending  upon  remote 
places  to  obtain  their  right,  or  any  civil  accomplishment,  so 
it  be  not  supreme,  but  subordinate  to  the  general  power  and 
union  of  the  whole  republic ;  in  which  happy  firmness,  as  in 
the  particular  above  mentioned,  we  shall  also  far  exceed  the 
United  Provinces,  by  having,  not  as  they,  to  the  retarding 
and  distracting  ofttimes  of  their  counsels  or  urgentest 
occasions,  many  sovereignties  united  in  one  commonwealth, 
but  many  commonwealths  under  one  united  and  entrusted 
sovereignty."  1 

Since  freedom  of  municipal  incorporation  exists 
only  in  the  United  States,  and  even  there  does  not 
generally  prevail,  we  should  not  expect  and  we  do 
not  find  that  it  has  been  attended  with  any  marked 
political  or  economical  consequences.  It  naturally 
coalesces  with  our  other  institutions,  and  simply  re- 
moves opportunities  for  favoritism  and  cheapens 
expenses  of  administration. 

As  to  freedom  of  incorporation  for  private  pur- 
poses, the  case  is  different.  This  has  secured  a  place 
among  the  institutions  of  the  civilized  world,  and  its 
effects  are  far-reaching  and  almost  revolutionary. 

How  is  it,  we  must  first  ask,  that  it  has  so  suddenly 
attained  this  position?  What  are  the  causes  that  in 
half  a  century  served  to  reverse  a  rule  of  legislation 
that  had  been  everywhere  accepted  since  the  fall  of 
the  Roman  empire? 

First  among  these  I  should  name  the  improvement 
in  the  arts,  by  which  machinery  has  been  so  largely 
substituted  for  human  hands.  Household  manufac- 

1  Milton's  Prose  Works,  Boston  ed.  of  1826,  ii.  329,  330. 


FREEDOM   OF   INCORPORATION  217 

tures  have  thus  become  unimportant.  Individual 
skill  and  dexterity  are  little  considered  in  such  manual 
labor  as  is  still  required.  All  important  products, 
except  crops  from  land  (and  those  also  to  a  steadily 
increasing  extent),  come  from  a  combination  in  a 
single  workshop  of  laborers  with  capital  in  the  form 
of  costly  mechanism  moved  by  steam  or  electricity. 
It  is  also  true  that  the  largest  workshops  prove  the 
most  economical.  Nor  can  the  small  producer  con- 
tend with  the  large  producer  on  equal  terms  in 
disposing  of  his  goods.  Steam  and  electric  loco- 
motion, aided  by  the  telegraph  and  telephone,  have 
annihilated  the  local  market.  Every  manufacturer 
must  compete  with  those  of  the  whole  country,  or 
else  combine  with  those  of  the  whole  country  to  an 
extent  sufficient  to  prevent  competition.  Such  com- 
binations are  merciless.  Their  aggregated  resources 
allow  them  to  establish  prices  below  the  cost  of  pro- 
duction long  enough  to  ruin  any  small  concerns  that 
have  not  joined  them. 

Great  undertakings  are  now  almost  the  only  suc- 
cessful undertakings :  certainly  the  only  ones  which 
offer  large  profits  to  many  people.  Mere  partnerships 
are  no  longer  adequate  to  the  necessities  of  the  busi- 
ness world.  They  are  not  strong  enough  for  the 
strain.  In  amount  of  capital,  in  term  of  duration, 
in  unity  of  management  even,  they  are  no  match  for 
the  corporation.  Partners  may  differ,  and  the  house 
divided  against  itself  will  fall.  Stockholders  in  corpo- 
rations may  differ,  but  the  iron  rule  of  the  majority 
guaranties  consistent  and  harmonious  action,  when  a 
board  of  management  is  once  elected.  This  board, 


2i8  FREEDOM   OF   INCORPORATION 

too,  while  more  numerous  than  partners  in  an 
ordinary  firm,  unlike  them  acts  as  one  man  and 
by  one  man. 

It  was  the  contention  of  the  old  school  of  political 
economists,  the  school  of  which  J.  R.  M'Culloch  was 
one  of  the  last  leaders,1  that  directors  of  trading  com- 
panies would  not  and  could  not  give  that  personal 
attention  to  the  business,  which  was  necessary  to 
ensure  success,  and  so  that  trading  partnerships,  in 
which  every  member  took  an  active  part  in  the 
management,  were  a  far  safer  mode  of  association. 
It  is  precisely  because  every  partner  in  an  ordinary 
mercantile  firm  is  expected  to  take  an  active  part  in 
its  affairs  that  the  partnership  is  inferior  in  executive 
power  to  the  corporation  of  equal  capital.  That 
principle  of  absolutism  around  which  we  have  thrown 
so  many  checks  in  political  governments,  by  the 
usages  of  modern  business  is  recognized  there  as  in- 
evitable and  controlling.  Unity  of  policy,  instant 
decision,  immediate  action,  strict  subordination,  — 
without  these  the  war  of  competition  under  present 
conditions  cannot  be  waged  with  success.  It  must 
be  regulated  by  military  maxims,  and  with  but  one 
general  in  command. 

Add  to  this  the  protection  of  limited  liability  which 
the  corporation  offers,  and  it  is  no  wonder  that  noth- 
ing else  will  satisfy  the  modern  capitalist.  He  is  not 
ready  to  stake  his  whole  fortune  in  the  success  of  a 
particular  enterprise.  He  prefers  to  scatter  his  in- 
vestments, and  risk  by  each  only  what  he  especially 

1  See  his  article  on  Companies  in  the  "  Encyclopedia  Britannica," 
8th  edition. 


FREEDOM   OF  INCORPORATION  219 

devotes  to  it.     He  cannot  give  his  personal  attention 
to  the  management  of  each.      He  may  not  care  to 
give  it  to  that  of  any  of  them.     The  one  man,  then, 
who  is  to  be  directly  in  control  of  every  large  busi- 
ness is  not  often  its  owner.     There  are  many  owners ; 
and  not  infrequently  no  one  of  them  would  be  com- 
petent for  such   a  position.     By  assuming  the  form 
of  a  corporation  they  can  secure  the  services  of  one 
who  is,  without  incurring  the  ordinary  liability  of  an 
employer  for  the  acts  of  his  agent.     The  employer 
I  may  lose  his  whole  fortune  by  some  injury  which  his 
agent  carelessly  inflicts  upon  another.     The  share- 
holder in  an  ordinary  corporation  cannot  lose  any- 
thing beyond  his  stock  by  such  misconduct  on  the 
part  of  the  president.     He  can  also  keep  a  certain 
watch    upon  him    through    his    representatives,    the 
board  of  directors.     It  is  true  that  this  is  less  real  in 
practice  than  it  seems  in  theory.     Whatever  powers 
may  be  placed   in  boards  of  directors,  they  cannot 
be  always  in    session,  and    between    their   meetings 
some  one  will  must  be  in  control,  and  in  emergencies 
in  what  is  practically  absolute  control.     But  the  next 
meeting  of   the  directors  or  of  the  executive  com- 
mittee, and  the  report  to  be  made  to  it,  is  always  in 
prospect.      A  great  capital  is  seldom  sunk  by  any 
single  act,  or  temporary  course  of  policy.     A  vigi- 
lant  stockholder,  with    a  considerable    interest,  can 
always  keep  himself  fairly  well  informed,  if  he  asks 
questions  enough  of  those  who  are  acting  for  him, 
and  looks  with  care  at  the  books  which  he  is  entitled 
to  inspect. 

Whatever  is  the  "law  merchant"  is  not   long  in 


220         .  FREEDOM   OF   INCORPORATION 

becoming  the  law  of  the  land.  As  soon  as  business 
men  came  to  feel  that  their  interests  were  safest  in 
charge  of  a  corporation,  they  began  to  demand  that 
incorporation  should  be  made  as  easy  as  the  old  forms 
of  voluntary  association.  The  rapidity  of  motion 
of  modern  trade  is  such  that  ordinary  enterprises 
cannot  safely  be  delayed  by  applications  for  special 
charters.  They  must  be  pressed  forward  with  the 
despatch  of  the  telegraph  and  the  telephone.  There 
must  be  the  same  liberty  to  form  a  corporation  in  a 
day  that  there  is  to  form  a  partnership  in  a  day,  and 
the  same  freedom  from  outside  interference  in  any  of 
the  initial  steps. 

The  way  to  this  was  paved  by  what  Lieber,  writing 
in  1853,  described  as  the  "  all-pervading  associative 
spirit "  so  characteristic  of  English  speaking  peoples.1 
It  long  since  ceased  to  be  distinctively  theirs.  The 
same  forces  which  led  England  to  repeal  her  laws 
against  combinations  of  workingmen  in  1827,  led 
France  and  Germany  to  repeal  theirs,  forty  years 
later.  The  right  of  temporary  association  has  gained 
in  several  countries  of  Europe,  and  even  in  one  of  the 
East,2  a  constitutional  sanction. 

The  demand  for  this  came  mainly  from  the  laboring 
classes,  but  the  associative  spirit  had  taken  posses- 
sion of  the  whole  community.  The  legal  expression 
of  it  was  the  result  of  the  same  social  conditions 
already  mentioned.  The  workmen  found  it  necessary 
to  unite  in  self-defence.  They  must  accumulate  a 
capital  to  support  their  claims  to  reasonable  wages 

1  Lieber's  "Civil  Liberty,"  129. 

2  Japan,  Constitution  of  1889,  art.  xxix. 


FREEDOM   OF   INCORPORATION  221 

and  proper  treatment.  The  employer  did  not  oppose 
them  in  this.  He  could  not  with  any  degree  of  con- 
sistency, or  any  prospect  of  success.  The  modern  / 
trades-unions  and  fraternal  societies  are  as  much  the 
fruit  of  steam  and  electricity  as  the  factories  where 
their  members  work. 

Another  cause,  not  less  deep-seated,  for  offering 
corporate  privileges  to  all  who  wish  them,  without 
discrimination,  is  the  general  acquiescence  of  our  age 
in  the  doctrine  that  all  men  are  born  free  and  equal, 
and  are  entitled  to  a  free  and  equal  government,  rest- 
ing on  their  own  consent.  General  laws  further  this 
equality,  and  special  laws  abridge  it. 

So  far  as  concerns  private  corporations,  there  is 
also  a  certain  sentimental  reason  for  allowing  them  to 
be  created  at  will.  They  serve  to  prolong,  as  it  were, 
the  life  of  the  individual,  by  linking  it  with  that  which 
will  not  die. 

The  founder  of  an  incorporated  institution,  whether 
it  be  a  charity  or  a  manufacturing  company  which 
bears  his  name,  and  every  member  of  a  scientific  body 
or  social  club,  has  become  a  part  of  something  that 
will  live  after  him,  and  through  which  his  memory 
may  be  perpetuated.  Whatever  he  may  contribute 
to  the  advancement  of  its  interests  will  go  into  a  com- 
mon stock,  in  which  those  who  are  to  take  his  place 
may  share,  and  to  which  they  may  be  expected  to 
add.  The  union  of  those  working  for  a  common  end 
is  rendered  doubly  effective  if,  as  one  drops  out,  an- 
other enters  in  unbroken  continuity  of  succession. 


222  FREEDOM   OF   INCORPORATION 

In  former  times,  men  were  able  to  perpetuate  their 
name  by  founding  a  family  upon  an  entailed  estate, 
and  weaving  it  into  the  political  constitution  of  their 
country,  so  that  it  partook  of  the  same  stability,  and 
might  endure  as  long.  Now  it  is  the  society,  the  col- 
lege, the  church,  the  library,  the  factory,  the  business 
with  which  they  have  been  connected,  or  in  the  use- 
fulness of  which  they  are  confident,  that  they  aid  to 
a  permanent  establishment,  and  through  whose  contin- 
uance after  they  are  gone  they  feel  that  they  can  best 
impress  their  ideas  and  their  influence  upon  posterity. 
It  is  thus  that  we  have  found  a  way  to  prolong  our 
passing  lives,  one  might  almost  say  forever.  By  such 
organizations,  what  is  best  of  the  activity  and  aspira- 
tion of  one  generation  can  be  unceasingly  transfused 
into  the  next,  to  gather  new  strength  in  the  general 
upward  progress  of  the  race,  and  advance  continually 
towards  a  fuller  attainment  of  whatever  objects  they 
may  be  formed  to  promote. 

As  man  learns  better  what  is  his  relation  to  the 
world  about  him;  as  he  understands  more  clearly 
how  weak  he  is,  standing  alone ;  as  he  looks  back 
to  his  origin  and  forward  to  his  destiny,  he  feels 
more  and  more  strongly  the  necessity  of  close  human 
association  for  common  ends. 

The  record  written  in  the  rocks  and  buried  in 
caves,  that  modern  science  has  brought  to  light,  of 
the  law  of  evolution,  if  one  were  to  think  only  of  the 
history  of  individuals,  would  make  us  tremble  for 
the  future-of  mankind.  The  lower  animals,  still  true 
to  the  ancient  rules  of  natural  selection  and  the 
struggle  for  existence,  are  maintaining  in  their  prog- 


FREEDOM   OF   INCORPORATION  223 

eny  the  best  characteristics  of  their  kind.  Man, 
who  raises  to  maturity  the  puny  and  feeble  of  his 
offspring,  only,  perhaps,  to  perpetuate  their  weak- 
ness in  another  generation,  seems  to  transgress  in 
this  the  laws  by  which  his  physical  being  is  regu- 
lated in  the  statutes  of  the  universe.  He  prolongs 
and  reproduces  types  of  constitutions,  which  in  the 
original  order  of  nature  would  have  been  early  borne 
down  and  swept  away  by  something  stronger.  But 
that  heaven-born  mind  that  has  made  man  the  mas- 
ter of  the  earth  has  come  to  his  support,  and  taught 
him  the  law  of  corporate  vitality.  The  sickly  child, 
who,  in  rougher  ages,  if  not  exposed  to  perish  in 
infancy,  would  have  fallen  early  in  the  struggle  for 
existence,  may  now  be  tenderly  reared  to  manhood. 
He  will  not  stand  alone  and  unaided  in  the  commu- 
nity. He  will  be  free  to  bind  himself  by  a  voluntary 
tie  to  stronger  men  and  mingle  his  best  qualities 
with  theirs  in  indissoluble  union,  each  giving  some- 
thing to  gain  more.  The  races  of  the  civilized  world 
number  many  of  feebler  form  than  their  barbarian 
ancestors,  or  the  savages  of  our  own  day;  but  by 
associations  formed  for  perpetual  succession  to  pros- 
ecute the  same  object  steadily  and  always,  as  one 
man,  they  have  in  effect  banished  death  and  time 
from  the  domain  of  human  achievement. 

It  is  not  easy  to  measure  the  weight  of  considera- 
tions like  these  in  determining  the  course  of  human 
affairs.  They  are  not  the  subject  of  statistics,  and 
hardly  of  reasoning.  But  it  is  not  always  the  mo- 
tives that  lie  on  the  surface,  or  that  are  most  com- 
monly stated,  which  account  for  human  conduct. 


224  FREEDOM   OF   INCORPORATION 

Sentiment  has  a  large  place  in  the  development  of 
institutions.  Its  place  is  all  the  larger  because  it 
is  something  indefinite  and  intangible,  because  it 
reaches  out  farther  than  thought  can  go,  and  be- 
longs to  that  in  our  nature  which  in  the  life  of  earth 
is  unknowable.  It  is  this  which  makes  it  an  enduring 
power,  "  for  the  things  which  are  seen  are  temporal ; 
but  the  things  which  are  not  seen  are  eternal." 

Another  ground  of  the  demand  for  general  incor- 
poration laws  which  requires  mention  is  the  growing 
distrust  of  the  people  for  their  legislatures.  Experi- 
ence has  shown  that  charters,  from  whatever  author- 
ity they  may  proceed,  go  by  favor,  and  quite  too 
often  to  the  least  worthy.  The  modern  tendency 
to  overmuch  legislation  renders  it  difficult  in  the 
rush  of  business  for  committees  to  examine  each 
measure  that  comes  before  them  with  the  necessary 
care.  There  is  ordinarily  no  opposition  to  an  appli- 
cation for  incorporation,  and  it  is  granted  in  the 
terms  asked  for,  without  the  scrutiny  which  would 
attend  an  active  opposition.  Safeguards  that  are 
essential  to  the  public  interests  are  apt  to  be  inserted 
in  one  charter  and  omitted  from  another  almost  by 
accident. 

These  considerations  are  of  special  weight  in  new 
countries,  which  are  looking  for  a  rapid  growth  in 
wealth  and  population ;  but  the  same  causes  are  at 
work  in  all.  The  universal  extension  of  popular 
representation  in  legislative  bodies  has  brought  the 
oldest  governments  face  to  face  with  the  spirit  of 
innovation  and  adventure,  —  the  spirit  of  men  who 


FREEDOM   OF  INCORPORATION  225 

have  little  to  lose,  and  are  risking  the  property  and 
security  of  others  rather  than  their  own. 

The  immediate  results  of  the  adoption  of  general 
incorporation  laws  have  been  everywhere  nearly 
the  same.  At  first,  it  has  led  to  many  hasty  and 
ill-considered  ventures,  which  were  a  mere  waste 
of  the  capital  invested,  and  also  brought  some  com- 
panies into  existence  which  imposed  upon  the  public 
by  the  issue  of  fictitious  or  unsound  securities.  A 
reaction  in  legislation  has  followed.  New  safeguards 
have  been  created  against  the  abuse  of  corporate 
franchises.  These  have  soon  been  found  to  bear  too 
hardly  on  legitimate  enterprises,  and  some  relaxa- 
tion has  been  granted.  Each  new  law  has  thus  been 
the  occasion  of  others,  but  each  has  left  the  vital 
principle  of  free  incorporation  untouched.  It  is  so 
in  accord  with  the  spirit  of  the  age,  that  it  must 
ultimately  prevail  in  every  country  where  any  degree 
of  individual  liberty  exists. 

In  attempting  to  estimate  its  general  influence 
on  modern  society,  it  is  not  possible  to  discriminate 
closely  between  results  due  to  the  corporation  on 
its  original  footing  and  those  following  from  its 
creation  under  general  laws. 

This,  however,  is  certain,  that  those  laws  have 
been  everywhere  followed  by  an  immediate  and 
large  increase  in  the  number  of  business  companies 
and  the  amount  of  capital  invested  in  active  enter- 
prises. Between  the  adoption  of  the  Companies 
Act  of  1862  and  1890,  there  were  organized  in  Great 
Britain  nearly  thirty-five  thousand  corporations,  with 

15 


226  FREEDOM   OF   INCORPORATION 

limited  liability,  of  which  those  surviving  in  the  latter 
year  had  a  total  capitalization  of  over  ;£22O,ooo,ooo.1 
In  Prussia  more  were  created  in  1871,  the  year  follow- 
ing the  first  general  incorporation  law,  than  in  the 
whole  of  the  first  half  of  the  century,  and  in  1872 
the  number  was  more  than  doubled.2  Before  the 
close  of  the  year  (1892)  in  which  Germany  enacted 
her  limited  liability  quasi-corporation  Act,  sixty 
such  companies  had  been  formed  there,  with  an 
aggregate  capital  of  over  $7,000,000,  and  nearly  fifty 
more  were  added  during  the  next  three  months.3 
The  French  law  of  1867,  during  its  first  full  year 
of  operation,  produced  nearly  two  hundred  soctites 
anonymes,  and  in  1881,  when  the  movement  reached 
high  water  mark,  976  of  them  were  organized,  be- 
sides fifty  co-operative  associations  and  143  partner- 
ships en  commandite  with  transferable  shares.4  In 
the  United  States  the  movement  has  been  much 
more  rapid.  In  the  larger  States  more  corporations 
are  formed  under  the  general  laws  every  year  than 
existed  in  the  whole  world  at  the  close  of  the  eigh- 
teenth century.  Connecticut  has  a  larger  number 
than  the  Russian  empire.5 

1  Brockhaus'  Konversations-Lexicon,  Gesellschaft  mit  beschranker 
Haftung. 

2  Handwb'rterbuch  der  Staatswissenschaften,  Aktiengesellschaften, 
126,  127. 

8  Brockhaus'  Konversations-Lexicon,  Gesellschaft  mit  beschranker 
Haftung. 

4  Handworterbuch  der  Staatswissenschaften,  Aktiengesellschaften, 
159- 

6  Russia  entered  the  nineteenth  century  with  but  one  trading  cor- 
poration. In  1881  she  had  833.  There  were  over  1500  formed  under 
the  general  law  of  Connecticut  during  the  first  33  years  after  its 


FREEDOM   OF   INCORPORATION  227 

English  capital  is  largely  represented  both  in  Ger- 
man and  American  corporations.  On  the  other  hand, 
American  capital  seeking  investment  in  maritime  com- 
merce is  often  put  into  shares  in  an  English  limited 
liability  company.  Many  a  steamer  thus  plies  under 
the  British  flag,  and  was  built  in  a  British  shipyard, 
which  is  substantially  owned  by  citizens  of  the  United 
States,  who  find  that  they  can  in  this  way  get  the 
most  for  their  money. 

In  countries  where  general  incorporation  laws  are 
not  fortified  by  constitutional  provisions,  special 
charters  are  occasionally  granted,  but  seldom  ex- 
cept for  undertakings  of  an  international  character. 

What,  now,  have  these  myriads  of  new-born  cor- 
porations, coming  into  existence  at  the  mere  will 
of  their  promoters,  accomplished  of  good  or  evil? 

To  those  who  have  put  money  in  them,  they  have 
often  brought  severe  loss.  Such  was  notably  the 
effect  of  the  Italian  general  incorporation  laws  in 
stimulating  the  attempt  to  rebuild  Rome  in  a  day, 
which  resulted  not  only  in  new  splendors,  but  new 
ruins.  The  same  thing  may  be  noted  of  the  German 
law,  under  the  influence  of  which  Berlin  became  the 
subject  of  a  disastrous  "  boom."  But  the  failure  of 
a  joint  stock  company  is  not  as  unmixed  an  evil 
to  the  community  as  that  of  a  private  individual 
with  an  equal  capital.  He  may  be  ruined  for  life, 
and  for  him  there  is  no  financial  resurrection.  Even 

enactment.     Special  Laws  of  Conn.,  iv.  957.    This  number  has  since 
probably  been  more  than  doubled. 


228  FREEDOM   OF   INCORPORATION 

a  discharge  in  bankruptcy  will  not  restore  his  original 
credit.  The  company,  on  the  other  hand,  can  be 
easily  re-organized  under  a  new  name,  and  the  new 
possessors  of  its  plant  will  take  it  at  a  low  capitaliza- 
tion upon  which  they  may  be  able  to  work  it  at 
a  profit.  Nor  need  the  losses  of  the  former  owners 
be  crushing  to  any  of  them.  It  will  involve  only 
what  they  invested  in  this  particular  concern,  and 
men  seldom  risk  their  all  in  the  stock  of  any  single 
corporation. 

To  such  failures  and  re-organizations,  Thorold 
Rogers  attributes  in  part  that  general  depression  of 
prices  throughout  the  world  which  has  marked  the 
closing  quarter  of  the  nineteenth  century.1 

In  the  trade  of  our  times  goods  are  sold  in  large 
quantities  and  at  small  profits.  The  cost  of  produc- 
tion is  largely  determined  by  the  cost  of  the  plant. 
The  re-organized  corporation  which  rises  out  of  the 
wreck  of  an  unfortunate  predecessor,  representing 
generally  its  bonds  instead  of  its  stock,  has  acquired 
its  plant  so  cheaply  that  it  can  afford  to  sell  low,  and 
yet  pay  dividends.  This  gives  it  the  command  of  the 
market.  It  undersells  other  manufacturers.  They 
fail,  and  from  the  new  ruins  emerge  new  corporations, 
to  repeat  the  process,  and  work  their  plants,  acquired 
at  foreclosure  prices,  on  a  basis  of  diminished  cap- 
italization. The  public  thus  gain  what  the  original 
stockholders  lost. 

A  much  more  obvious  and  certain  cause  for  the 
universal  fall  in  values,  or  rise  in  what  measures 
values,  is  to  be  found  in  the  inexorable  law  of  supply 

1  The  Economic  Interpretation  of  History,  311. 


FREEDOM   OF   INCORPORATION  229 

and  demand.  The  more  easily  corporations  are 
formed,  the  more  easily  capital  is  massed  at  its  best 
for  productive  work.  It  is  the  corporation  which 
owns  the  machinery  and  directs  the  power  which  are 
so  multiplying  the  force  of  human  hands,  that  with 
their  aid  ten  men  now  turn  out  more  manufactured 
goods  in  a  day  than  ten  thousand  once  could  in  a 
year.  Asia  and  Africa  must  be  civilized  and  edu- 
cated to  demand  the  comforts  of  European  and 
American  life,  before  the  market  will  be  wide  enough 
to  satisfy  the  natural  demands  of  corporate  enterprise 
under  modern  conditions. 

And  what  is  the  influence  of  the  corporation  on  the 
men  whom  it  employs  ?  It  is  a  hard  master.  It  can 
always  take  the  tone  of  a  trustee.  It  represents 
others.  Its  only  money  is  their  money.  It  has  no 
right  to  give  away ;  none  to  retain  the  sick  and  feeble 
in  its  employment  at  their  old  wages,  unless  it  can  be 
made  to  appear  that  this  is,  on  the  whole,  for  the 
pecuniary  advantage  of  the  concern. 

Against  the  incorporated  employer  has  therefore 
risen  up  the  incorporated  employees.  One  of  the 
great  forces  of  modern  society  and  modern  politics  is 
"  organized  labor."  It  has  been  a  natural  product  of 
the  factory  system.  That  brings  large  bodies  of  work- 
men together  under  one  roof,  and  subjects  them  to 
one  rule.  It  tends  also  to  centre  manufacturing  of  a 
particular  kind  in  a  particular  place  or  district.  The 
boot  and  shoe  business  of  the  United  States,  for 
instance,  radiates  from  eastern  Massachusetts ;  Lyons 
is  the  great  seat  of  silk  manufacture,  and  Manchester 


230  FREEDOM   OF   INCORPORATION 

of  that  of  cotton  goods.  Laborers  in  the  same  trade, 
whether  in  the  same  factory,  or  in  neighboring  and 
competing  ones,  have  naturally  supplemented  their 
association  by  day,  by  association  in  their  evenings 
or  Sundays  for  the  promotion  of  their  common  inter- 
ests. These  re-unions  began  to  take  the  form  of 
regular  and  permanent  organizations  in  this  country 
early  in  the  nineteenth  century.  Charters  of  incor- 
poration were  soon  granted  to  such  bodies,  and  they 
have  since  shared  with  all  others  the  privileges  of  our 
general  incorporation  laws.  In  1886,  the  national 
government  took  action  in  the  same  direction  in  favor 
of  those  labor  organizations  which  branch  out  in  sev- 
eral States.  By  an  Act  of  Congress  of  that  year,1 
"  any  association  of  working  people  having  two  or 
more  branches  in  the  States  or  Territories  of  the 
United  States  for  the  purpose  of  aiding  its  members 
to  become  more  skillful  and  efficient  workers,  the 
promotion  of  their  general  intelligence,  the  elevation 
of  their  character,  the  regulation  of  their  wages  and 
their  hours  and  conditions  of  labor,  the  protection  of 
their  individual  rights  in  the  prosecution  of  their  trade 
or  trades,  the  raising  of  funds  for  the  benefit  of  sick, 
disabled,  or  unemployed  members,  or  the  families  of 
deceased  members,  or  for  such  other  object  or  objects 
for  which  working  people  may  lawfully  combine, 
having  in  view  their  mutual  protection  or  benefit,"  is 
termed  a  "  National  Trade  Union,"  and  on  filing  arti- 
cles of  incorporation  in  the  office  of  the  Recorder  of 
the  District  of  Columbia,  shall  "  become  a  corpora- 
tion under  the  technical  name  by  which  said  National 
1  24  U.  S.  Statutes  at  Large,  86. 


FREEDOM  OF   INCORPORATION  231 

Trade  Union  desires  to  be  known  to  the  trade ;  "  with 
power  "  to  establish  branches  and  sub-unions  in  any 
Territory  of  the  United  States." 

In  England,  trades-unions  have  been  legal  organiza- 
tions since  1825  ;  in  Italy  since  1865  ;  in  Prussia  since 
1866.  France  adopted  the  same  policy  during  the 
Revolution  of  1848,  and  again  after  the  fall  of  the 
second  empire.  It  may  be  said  to  be  the  rule  of 
the  world  that  labor  is  now  free  to  combine  for  its 
own  protection,  and  of  most  countries  that  it  can 
obtain,  if  desired,  the  favor  of  incorporation  on  easy 
terms.  The  result  has  been  a  multitude  of  incorpo- 
rated benefit  and  insurance  societies  among  working- 
men,  handling  considerable  funds,  accumulated  in  a 
common  treasury  from  small  dues  or  assessments 
contributed  by  many.  In  Great  Britain  four  per  cent 
of  the  entire  population  belong  to  some  form  of  labor 
organization,  and  in  1883,  the  aggregate  capital  of 
those  which  give  financial  aid  to  their  members  or 
their  families  exceeded  two  million  dollars. 

A  man  who  has  such  means  of  protection,  on  which 
he  has  the  right  of  a  proprietor  to  rely,  against  loss 
of  work  or  of  capacity  to  work,  is  less  likely  to  lay  up 
any  separate  capital  of  his  own.  He  saves  enough  to 
pay  his  weekly  dues  or  occasional  death  assessments 
to  his  society,  and  spends  the  rest  of  his  wages,  from 
day  to  day.  If  he  falls  sick,  or  meets  with  any  acci- 
dent, —  if  he  joins  in  a  strike  or  suffers  by  a  lock-out, 
the  society  treasury  will  supply  his  needs ;  when  he 
dies,  it  will  pay  a  considerable  sum  to  his  family. 
What  need,  then,  to  scrimp  and  save?  Dum  vivimus 
vivamus. 


232  FREEDOM   OF   INCORPORATION 

The  social  consequences  of  this  condition  of  things 
are  most  marked  in  the  United  States.  Here,  with 
high  wages,  cheap  food,  and  low  rents,  the  workman 
has  always  had  the  best  chance  to  raise  himself  into 
the  position  of  a  capitalist,  and  formerly  often  accom- 
plished it.  He  might  do  it  still,  with  equal  or  greater 
ease,  but  the  motive  has  been  so  largely  withdrawn, 
that  in  cities  or  manufacturing  villages  he  commonly 
dies  poor,  trusting  to  his  benefit  society  to  provide 
for  his  family.  Ordinarily  his  trust  is  not  misplaced, 
but  there  are  not  seldom  cases,  where  it  is  found,  when 
the  time  for  heavy  payments  comes,  that  corporate 
mis-management  and  reckless  investments  have  led 
these  organizations  into  insolvency.  Failures  of  this 
kind  again  react  upon  the  members,  and  incline  the 
less  serious  minded  of  them  still  more  to  the  philos- 
ophy of  Epicureanism.  Why  save  at  all  for  future 
needs,  if  their  own  mates,  even,  cannot  be  trusted  to 
keep  what  is  entrusted  to  their  care? 

No  student  of  American  life  has  failed  to  note  with 
regret  the  rapid  decrease,  during  the  latter  part  of  the 
nineteenth  century,  of  the  number  of  freeholders 
among  our  factory  operatives.  I  believe  the  main 
cause  has  been  their  growing  dependence  on  asso- 
ciated capital,  administered  by  the  various  forms  of 
mutual  aid  societies  and  fraternal  or  co-operative 
corporations.  "  Organized  labor  "  is  unfavorable  to 
individuality.  It  merges  the  man  in  a  class  of  men. 
He  is  no  longer  working  out  his  own  destiny:  others, 
to  whom  he  gives  but  slight  assistance,  are  working  it 
out  for  him,  and  seeing  that  it  rises  no  higher  than 
theirs. 


FREEDOM   OF   INCORPORATION  233 

To  one  form  of  association  among  workingmen  the 
principle  of  freedom  of  incorporation  has  proved 
unfriendly.  It  is  that  of  the  voluntary  co-operative 
society.  This  may  have  some  degree  of  success,  in 
the  absence  of  competition  by  corporations  in  the 
same  business ;  but  only  then.  If  it  becomes  incor- 
porated in  self-defence,  it  is  no  better  off,  unless 
either  the  necessary  capital  is  very  small,  as  in  the 
cooper's  trade,  or  it  is  contributed  in  unequal  shares, 
and  the  majority  in  interest  control  the  management. 
France,  in  1848,  tried  the  experiment  of  lending  such 
concerns,  formed  for  productive  industry,  the  nec- 
essary funds  for  starting  in  business.  Half  a  million 
dollars  was  advanced  to  fifty-six  of  them  from  the 
treasury  of  the  republic,  but  in  four  years  thirty  had 
gone  into  insolvency,  and  nearly  half  of  the  public 
money  was  irretrievably  sunk.1  Co-operative  trading 
societies  have  also  in  most  cases  fallen  before  the 
competing  corporation;  though  in  England  they 
were  of  lasting  benefit  to  all  the  larger  towns  in 
forcing  the  system  of  selling  for  cash  on  the  retail 
stores. 

In  the  matter  of  political  influence,  incorporated 
workingmen's  associations  have  also  achieved  less 
than  was  anticipated.  Jealousies  between  different 
organizations  and  among  the  leaders  in  each,  as  well 
as  the  strong  hold  of  the  great  parties  of  the  country 
upon  their  members,  have  stood  in  the  way  of  united 
action,  except  under  unusual  circumstances  and  on 
rare  occasions. 

1  Villetard's  "  History  of  the  International,"  Day's  Transl.,  24. 


234  FREEDOM   OF   INCORPORATION 

Passing  now  to  the  more  general  question  of  the  re- 
flex influence  of  the  modern  corporation  upon  the 
economic  conditions  and  administrative  policy  of  the 
State  whose  laws  gave  it  its  being,  we  cannot  fail  to 
see  that  it  has  been  an  important  one,  and  particularly 
as  to  methods  of  raising  revenue. 

Rome  was  a  great  military  power  because  of  its 
political  constitution.  It  was  a  collection  of  great 
families,  each  with  its  throng  of  poor  dependents; 
each  with  its  single  head.  Rome  knew  on  whom  to 
call  for  supplies  and  troops.  The  modern  State, 
following  on  lines  that  are  almost  parallel,  has  found 
an  easy  way  to  raise  its  taxes ;  or  at  least  to  add  to 
them.  Each  of  its  business  corporations  stands  much 
in  the  position  of  the  Roman  patrician  house.  Its 
concentrated  capital  cannot  be  concealed.  Its  politi- 
cal relations  to  the  State,  as  the  holder  of  a  public 
franchise,  place  it  under  a  perpetual  obligation,  for 
practically,  under  modern  law,  the  franchise  may  be 
withdrawn  by  the  power  that  granted  it,  at  will.  The 
consequence  is  that  in  this  country,  at  least  in  most 
of  our  larger  and  richer  States,  the  corporation  has 
become  the  great  tax-payer,  or  to  state  it  perhaps 
more  accurately,  the  great  tax-gatherer. 

De  Tocqueville,  in  the  first  half  of  this  century, 
noted  this  as  a  peculiar  feature  of  the  American 
system  of  municipal  administration.  In  France,  he 
said,  the  nation  assisted  the  commune  in  collecting 
its  revenues:  here  the  town  served  the  same  office 
for  the  State,  the  local  authorities  including  in  their 
own  tax  levy  whatever  sum  the  law  required  the 
rate-payers  of  the  municipality  to  contribute  to  the 


FREEDOM   OF   INCORPORATION  235 

general  government,  and  as  to  that  taking  substan- 
tially the  position  of  farmers  of  the  revenue. 

During  the  last  half  of  the  century,  the  immense 
increase  in  number  and  importance  of  private  corpora- 
tions has  worked  a  great  change  in  this  respect.  The 
State  has  turned  to  them  for  the  discharge  of  the  func- 
tion which  it  before  committed  to  the  municipalities. 
It  has  thrown  upon  them,  without  any  intermediate 
agency,  the  great  weight  of  State  taxation.  Its 
revenue  is  now  largely  derived  from  impositions  on 
railroads,  savings  banks,  insurance  companies,  and 
other  corporations  of  lesser  magnitude.  They  of 
course  collect  it  from  the  public,  with  whom  they 
deal,  or  the  capitalists  for  whom  they  act,  by  adding 
it  to  the  charges  for  service  which  they  would  other- 
wise make,  or  deducting  it  from  the  interest  or 
dividends  which  they  would  otherwise  pay. 

This  policy  is  economical  in  one  point  of  view  and 
wasteful  in  another.  It  greatly  reduces  the  expenses 
of  public  administration.  There  are  fewer  tax  asses- 
sors and  tax  collectors.  There  are  fewer  and  richer 
paymasters,  and  not  one  of  them  can  hide  himself 
or  his  property  from  the  public  eye.  On  the  other 
hand,  the  revenue  is  so  easily  obtained,  and  those 
from  whom  it  is  really  exacted  are  so  far  unconscious 
of  their  loss,  that  there  is  less  opposition  to  free  appro- 
priations for  unnecessary  objects.  When  the  county 
or  town  added  a  certain  percentage  to  the  local  tax 
as  the  contribution  of  its  inhabitants  to  the  expenses 
of  the  State,  every  one  of  these  felt  the  increase  of 
burden,  and  looked  to  his  representative  in  the 
legislature  to  see  that  at  least  it  grew  no  greater,  from 


236  FREEDOM   OF   INCORPORATION 

year  to  year.  The  corporation  tax,  also,  falls  more 
upon  the  city  than  the  country.  It  is  of  little  concern 
to  the  small  farmer  who  seldom  travels  by  rail,  who 
has  no  money  in  the  savings  bank,  no  insurance 
upon  his  life,  and  probably  none  upon  his  house. 
Our  State  legislatures  are  generally  controlled  by  the 
agricultural  interest,  and  burdens  that  do  not  affect 
that  unfavorably  are  easily  assumed.1 

No  single  State  can  pass  a  law  which  will  not 
disturb  the  equilibrium  of  its  old  laws  in  some 
unanticipated  direction.  The  civilized  world  during 
the  nineteenth  century  has  given  its  sanction  to  the 
general  incorporation  law,  and  we  see  its  effect  on 
other  laws  and  other  interests  as  yet  but  "  through  a 
glass,  darkly."  Already  the  new  creatures  which  it 
has  called  forth  control  its  commerce ;  they  conduct 
its  manufactures;  exploit  its  mines;  own  its  timber 
lands.  They  name  the  prices  for  its  agricultural 
products.  We  look  to  them  for  protection  against 
the  casualties  of  fire,  of  accidental  injury,  of  death 
itself.  They  have  charge  of  our  religious  worship ; 
of  the  higher  education  of  our  children;  of  the 
regulation,  largely,  of  the  social  duties  of  those  who 
are  fellow-workers  in  the  same  calling,  both  to  each 
other  and  to  the  general  community. 

This  vast,  impersonal  force  has  grown  up  so  slowly 
from  its  Roman  foundation,  to  a  work  of  which  the 
Romans  never  dreamt,  that  we  find  it  hard  to  see  how 

1  The  new  policy  was  fully  adopted  by  Connecticut,  in  1890,  when 
the  State  tax,  which  had  been  annually  laid  for  over  250  years,  was 
abandoned.  The  expenses  of  the  State  in  1889  were  about  a  million 
and  a  half.  In  1896,  they  were  nearly  two  millions  and  a  quarter. 


FREEDOM   OF   INCORPORATION  237 

far  it  has  stepped  outside  of  its  former  self.  It  is 
harder  to  forecast  its  future  progress.  Is  this  child 
of  the  State,  made  in  its  image,  sharing  its  powers 
and  immunities,  to  grow  until  it  becomes  re-united 
to  it,  re-  absorbed  into  its  being,  and  the  State  itself 
assumes  these  functions  at  the  cost  of  all  the  people, 
and  for  the  profit  of  all  its  people?  Or  will  individ- 
ualism re-assert  itself,  and  these  monster  corporations 
fall  to  pieces  by  their  own  weight  to  make  room, 
under  governments  which  have  no  end  but  to  pro- 
mote the  good  of  their  citizens,  and  already  protect 
property  and  personal  security  as  never  before  in 
human  history,  for  the  great  man  to  re-appear  in  a 
new  race  of  merchant  princes,  and  railroad  kings 
beholden  to  no  stockholders  for  their  palace  cars? 

Of  these  two  possibilities  the  latter  is  far  the  more 
remote.  The  Barings,  early  in  the  century,  were 
heroic  adventurers  for  fortune,  but  towards  its  close 
were  glad  to  seek  safety  under  the  mantle  of  the 
"  Baring  Brothers  &  Co.  (Limited)."  The  "  young 
Napoleon  of  finance,"  whose  successes  dazzled  Wall 
Street  not  many  years  ago,  soon  ended  his  career  in 
the  penitentiary.  The  Rothschilds  are  a  survival  of 
other  days.  The  Goulds  and  Vanderbilts  have  worked 
through  corporations. 

The  tendencies  of  our  age  towards  Collectivism  for 
capital  demand  it  both  for  the  accumulation  of  funds 
and  the  aggregation  of  owners.  It  is  demanded,  if  for 
nothing  else,  because  the  millionnaire  in  active  busi- 
ness has  become  an  object  of  general  criticism.  The 
corporation  doubles  its  capital,  and  no  one  complains. 
The  new  stock  is  widely  distributed,  and  no  one  man 


238  FREEDOM   OF   INCORPORATION 

is  conspicuous  for  his  ownership.  Not  so  when  the 
millionnaire  is  known  to  have  laid  by  another  million 
by  some  successful  enterprise  or  speculation.  He 
has  taken  from  many.  It  may  be  that  he  has  also 
given  to  many,  but  this  is  forgotten.  By  a  large  part 
of  the  community  he  is  looked  on  as  a  sort  of  enemy 
to  the  human  race,  who  has  run  up  the  black  flag. 
His  plan  may  be  economical.  He  has  no  dividends 
to  pay  to  others.  There  is  little  chance  for  waste,  if 
he  is  active  and  vigilant.  But  his  very  activity  and 
vigilance  are  counted  against  him  by  half  the  world. 

Karl  Marx,  in  his  Das  Kapital,  says  that  the  natural 
and  inevitable  end  of  modern  society  is  expropriation 
of  the  many  by  a  few  usurpers,  but  that  this  simply 
makes  it  easy  and  certain  that  a  new  order  of  things 
will  follow,  beginning  with  the  expropriation  of  these 
few  usurpers  by  the  many,  whom  they  have  been 
plundering. 

If  the  great  operations  of  modern  business  were 
conducted  by  single  capitalists,  in  their  own  name 
and  on  their  own  account,  there  would  be  much  more 
in  this  prophecy  of  socialism.  That  they  are  con- 
ducted by  the  corporation  and  the  trust  —  that  is  by 
many  for  many  —  takes  half  the  sting  out  of  his  say- 
ing, half  the  foundation  away  from  his  philosophy. 


CHAPTER  VII 

AMERICAN  JURISPRUDENCE  x 

THE  truest  gauge  of  a  nation's  civilization  is  its 
system  of  jurisprudence.  It  is  a  thing  natu- 
rally of  slow  growth  and  of  upward  growth.  If  it 
ceases  to  rise  and  spread,  we  have  a  certain  sign  that 
the  vital  forces  of  the  people  are  exhausted,  for  the 
people  are  the  real  sources  of  what  is  enduring  and 
uplifting  in  legal  institutions. 

The  United  States  and  the  States  of  which  they  are 
composed  are  building  up  on  American  soil  a  dis- 
tinctively American  jurisprudence.  The  great  stretch 
of  territory  to  the  north  of  us  is  a  dependence  of  a 
distant  government,  and  looks  for  leadership  there. 
Our  sister  republics  to  the  southward  have  been  con- 
tent, for  the  most  part,  to  follow  the  lines  of  the 
Roman  law.  But  to  us,  the  spirit  of  independence 
that  came  so  early  to  give  life  and  character  to  forms 
of  government  and  judicial  establishments,  brought 
with  it  a  transforming  power.  Latin  civilization  had 
lent  color  to  the  far  south  and  southwest.  The  Dutch 
had  brought  something  of  it,  and  more  of  their  own 
rugged  republicanism,  to  New  York.  The  Puritans 

1  In  preparing  this  chapter  free  use  has  been  made  of  an  address 
by  the  author,  delivered  before  the  Ohio  State  Bar  Association  at 
Put-in-Bay,  July  14,  1892. 


240  AMERICAN   JURISPRUDENCE 

had  learned  in  Holland  much  that  they  afterwards 
put  into  the  institutions  of  New  England.  But  it  is 
not  what  we  owe  to  Spain,  or  France,  or  Holland, 
that  has  made  American  so  different  from  English 
jurisprudence.  The  nation  that  has  governed  itself 
for  more  than  a  century,  that  has  within  it  States  that 
have  governed  themselves  for  more  than  two  centuries, 
cannot  but  have  a  law  and  life  peculiar  to  itself,  the 
fruit  of  the  ground  on  which  they  grew. 

It  has  been  said  that  there  is  a  Great  Britain  and  a 
Greater  Britain.  But  no  one  land  can  now  be  called 
our  mother  country.  Once  Boston  and  Philadelphia 
might  well  give  that  name  to  England,  and  New 
Orleans  and  St.  Louis  to  France ;  but  now,  when,  if 
we  count  by  nationalities,  there  are  few  cities  in 
Germany  containing  more  of  German  birth  than  does 
New  York  or  Cincinnati,  and  few  in  Norway  with  a 
Norse  population  like  that  of  some  of  our  North- 
western towns ;  when  the  best  half  of  Ireland  is  in 
America;  when  the  face  and  tongue  of  the  Italian 
and  the  Hungarian  have  become  familiar  on  our 
streets,  —  we  may  say,  with  Cicero,  that  we  have  our- 
selves commenced  our  line  of  ancestry. 

There  is  to  rise  here,  Herbert  Spencer  has  told  us, 
from  the  mixture  of  allied  varieties  of  the  Aryan  race, 
a  finer  type  of  man  than  has  hitherto  existed,  —  a 
type  more  plastic,  more  capable  of  the  modifications 
needed  for  the  completer  social  life  that  is  to  come. 
For  this  new  race  we  are  to  prepare  the  way ;  and 
we  and  those  who  went  before  us  have  prepared  it 
by  the  foundation  of  a  broader  and  humaner  juris- 
prudence. 


AMERICAN   JURISPRUDENCE  241 

Into  the  law  of  nations  we  of  America  have  intro- 
duced the  principle  of  voluntary  expatriation.  It  is, 
indeed,  the  condition  of  our  existence.  The  doctrine  of 
perpetual  allegiance  was  undisputed  in  the  Old  World. 
Its  application  to  Americans  by  the  British  Crown  was 
one  of  the  grievances  recited  in  the  Declaration  of 
Independence ;  but  we  ourselves  asserted  its  obliga- 
tion long  after  independence  had  been  achieved. 

Jeremiah  Mason  once  said  that  the  development  of 
an  American  jurisprudence  could  only  be  looked  for 
from  the  courts  of  the  national  government.  Upon 
this  question,  however,  it  was  a  court  of  a  State,  that 
of  Pennsylvania,1  which,  following  the  language  of 
her  Constitution,  framed  by  Franklin,  first  declared 
expatriation  an  original  and  indefeasible  right  of  man ; 
and  this  at  a  time  when  those  of  the  United  States 
adhered  to  the  rules  of  the  common  law.2  Thus  it 
was  left  to  Congress  to  affirm  by  statute  the  American 
principle,  as  soon  as  the  nation  felt  strong  enough  to 
assert  it  against  the  world,3  and  treaties  which  have 
been  made,  in  pursuance  of  this  declaration,  have 
now  obtained  its  recognition  in  almost  every  country 
that  can  call  itself  civilized. 

This  new  rule  of  American  jurisprudence  is  the  work 
of  the  bar,  rather  than  the  courts.  Its  earliest  sup- 
porters were  Adams  and  Jefferson,  and  to  our  At- 
torney-Generals, and  the  great  lawyers  who,  from  time 
to  time,  have  had  the  direction  of  the  Department  of 
State,  we  owe  especially  its  international  authority. 

1  Murray  v.  McCarthy,  2  Munford's  Reports,  393. 

2  Williams'  Case,  Wharton's  State  Trials,  652. 
8  U.  S.  Revised  Statutes,  §  1999 ;  Act  of  1868. 

16 


242  AMERICAN   JURISPRUDENCE 

For  ourselves,  also,  we  have  changed  the  law  of 
nations  as  to  treaty  obligations,  in  its  fundamental  con- 
ception. Treaties  are  not  for  us  mere  contracts,  with 
no  higher  sanction  than  the  military  power  of  the  other 
government.  The  Constitution  of  the  United  States 
has  raised  them  to  the  position  of  the  supreme  law  of 
the  land,  as  binding  as  an  Act  of  Congress  in  every 
American  court. 

Passing  from  the  relations  of  States  to  States,  to 
those  of  the  State  to  its  own  citizens,  we  find  a  dis- 
tinctively American  system  of  criminal  procedure. 

We  have  viewed  the  punishment  of  crime  from  a 
new  standpoint,  that  of  the  reformer.  Nine-tenths  of 
those  who,  in  England  a  hundred  years  ago,  would 
have  been  hanged,  have  been  here,  instead,  con- 
demned to  labor  for  a  term  of  years  in  what  we  have 
named,  with  kindly  hope,  a  penitentiary.  Pennsyl- 
vania was  the  first  of  civilized  communities  to  inaug- 
urate this  change,  under  her  Constitution  of  I7/6.1 
The  release  of  one  convicted  of  crime  on  probation, 
under  a  suspension  of  sentence,  also,  and  reforma- 
tories for  young  offenders,  are  distinctively  American 
innovations.2 

It  is  difficult  for  men  of  our  day  to  believe  how 
much  of  "  man's  inhumanity  to  man  "  was  shown  in 
the  criminal  law  of  England,  when  the  institutions  of 
this  country  first  took  shape.  The  common  law  was 
rigorous  enough,  but  in  the  days  of  the  Stuarts  and 
the  Georges  the  number  of  capital  offences  was  in- 

1  2  Poore's  "Charters  and  Constitutions,"  1547. 

2  See  Chapter  IX. 


AMERICAN   JURISPRUDENCE  243 

creased  by  nearly  two  hundred.  It  was  not  until  the 
beginning  of  this  century  that  hanging  ceased  to  be 
the  punishment  of  a  pickpocket. 

To  arrest  a  man  on  a  charge  of  crime  was  almost 
equivalent  to  a  conviction,  for  he  could  produce  no 
witnesses  in  his  own  behalf,  nor  have  counsel  to  plead 
his  cause.  It  makes  one's  blood  boil  in  his  veins  to 
read  one  of  the  shorthand  reports  of  the  State  trials 
of  the  seventeenth  century :  such,  for  instance,  as  that 
of  Stephen  College,  at  Oxford.  If  a  conviction  did 
not  lead  to  the  gibbet,  the  criminal  was  either  trans- 
ported or  turned  loose  on  the  community  after  some 
mark  of  bodily  degradation,  perhaps  with  his  ears 
cropped,  or  a  hand  struck  off,  to  fix  the  memory  of 
his  shame  upon  him  as  long  as  life  should  last.  De- 
grees of  punishment  for  the  greater  crimes  were 
marked  simply  by  the  degrees  of  barbarity  with  which 
the  wretch  was  executed.  Hanging  was,  indeed,  a 
mild  penalty,  when  compared  with  burning,  quarter- 
ing, and  disembowelling. 

Not  until  the  great  popular  movement  which  found 
voice  in  the  Reform  Bill,  and  has  made  England  more 
of  a  democracy  than  the  United  States,  were  these 
cruelties  swept  away  from  English  law. 

But  in  guarding  against  their  presence  here,  Amer- 
ican jurisprudence  may  have  gone  too  far.  To  forbid 
the  examination  of  the  accused  by  torture,  or  under 
any  form  of  compulsion,  was  right;  but  was  it  neces- 
sary to  forbid  the  committing  magistrate  to  ask  him 
anything,  except  whether  he  admits  or  denies  the 
charge?  I  believe  we  have  put  the  State  at  a  dis- 
advantage in  preventing  it  from  calling  upon  the 


244  AMERICAN   JURISPRUDENCE 

prisoner  to  give  an  account  of  the  transaction  out  of 
which  the  charge  arose  —  to  tell  his  own  story  in  his 
own  way,  knowing  that  whatever  he  says  may  be 
used  against  him  on  the  trial.1  And  is  there  a  reason 
which  is  really  good  for  giving  the  convict  an  appeal 
to  our  highest  courts  on  the  most  trivial  points  of  law, 
when  the  rights  of  the  public  are  generally  determined 
finally  by  the  trial  judge?  It  is  this  over-kindness  to 
the  individual,  to  the  prejudice  of  the  State,  which 
renders  possible,  and,  as  many  say,  defensible,  such 
things  as  the  killing  of  the  Italians  at  New  Orleans, 
and  the  lynch-law  executions  that,  in  some  of  our 
States,  outnumber,  every  year,  those  had  pursuant  to 
the  sentence  of  the  courts. 

In  one  respect,  our  criminal  law  is  perhaps  less 
favorable  to  the  accused  than  was  that  of  England. 
We  adopted  early  the  Continental  method  of  prose- 
cutions by  public  officers,  instead  of  leaving  them 
to  be  brought  or  dropped  according  to  the  dic- 
tates of  personal  feeling,  or  the  desire  for  pecuniary 
reparation. 

The  strength  and  value  of  government  by  party 
have  led  us  to  place  party  conventions  under  the  pro- 
tection of  the  criminal  laws.  Fraud  in  balloting  at  a 
nominating  caucus  is  punished  in  the  same  way  as 
frauds  at  public  elections.  A  new  order  of  rights  is 
recognized  :  those  which  flow  from  the  duty  of  politi- 
cal organization ;  for  it  is  the  duty  of  every  citizen  to 
use  his  elective  franchise  in  the  most  effective  way. 

1  See  Chapter  V. 


AMERICAN  JURISPRUDENCE  245 

That  way,  the  law  feels,  is  through  party  combi- 
nations, and  therefore  our  jurisprudence  is  enlarged 
to  embrace  their  recognition  and  protection. 

The  law  of  libel,  in  any  government,  is  one  of  the 
surest  tests  by  which  to  estimate  its  hold  upon  the 
people.  The  United  States  were  the  first  to  renounce, 
for  their  rulers,  the  protection  of  this  law.  When  the 
decemvirs  were  framing  the  Twelve  Tables  of  Rome, 
few  as  were  the  subjects  they  thought  it  important  to 
cover  in  their  code,  they  were  careful  to  make  libel 
against  the  State  a  capital  offence ;  for  they  were  the 
State,  and  they  were  turning  a  republic  into  a  despot- 
ism. When  the  people  of  England  were  beginning  to 
demand  a  greater  share  in  her  government,  it  was  the 
law  of  libel  to  which  the  Crown  resorted  for  its  surest 
weapon  of  defence,  and  it  was  the  pride  of  the  English 
bar  that,  in  criminal  cases,  they  nullified  it  by  the  aid 
of  the  jury.  With  us,  to  the  United  States  the  law 
of  libel  is  unknown,  because  they  have  no  common 
law,  and  because  the  only  statute  ever  passed  by 
Congress  to  replace  it,  on  this  subject,  was  swept 
away  in  the  first  change  of  administration,  and,  in- 
deed, in  no  small  part  was  the  cause  of  that  change 
of  administration ;  while  in  our  States  we  have  almost 
everywhere  come  to  the  position  that,  both  in  civil 
and  criminal  cases,  truth  is  a  justification,  unless  actual 
malice  is  proved. 

We  have  ventured  farther  than  any  nation  ever  dared 
to  go  before  in  forbidding  all  ex  post  facto  laws;  and 
this  and  other  guaranties  of  individual  right  we  have 


246  AMERICAN   JURISPRUDENCE 

woven  into  our  written  constitutions,  so  as  to  make 
them  the  supreme  law,  as  unalterable  as  the  frame  of 
government  itself. 

In  the  same  irrevocable  way  we  have  severed  the 
relations  of  Church  and  State. 

The  famous  definition  of  jurisprudence  given  by 
the  Roman  law,  that  it  is  divinarum  atque  hinnanarum 
rerum  notitia,  justi  atque  injusti  scientia,  has  been 
sharply  attacked  by  modern  critics,  as  confusing 
notions  of  law  and  religion.  But  in  what  nation,  be- 
fore our  own,  were  law  and  religion  ever  separated  in 
their  relations  to  the  State?  From  the  first  begin- 
nings of  patriarchal  society  the  world  has  looked  at 
them  as  coming  from  a  common  source,  upheld  by  a 
common  sanction,  and  forming  parts  of  the  same  ad- 
ministration of  government.  The  authority  of  each 
was  deemed  necessary  to  support  the  other. 

First  of  nations,  the  United  States,  without  the 
least  reflection  on  religion  of  any  form,  severed  the 
Church  from  the  State,  and  freed  the  current  of  its 
jurisprudence  from  all  ecclesiastical  control. 

Nor  has  this  mutual  independence  been  found  in- 
compatible with  restraining  power  in  the  civil  courts 
where  private  rights  were  affected  by  unjust  acts  of 
those  in  ecclesiastical  authority.  In  the  organization 
of  the  great  mother  church  of  Christendom,  the 
bishop  has  the  power  to  remove  any  priest  in  his 
diocese  from  his  parish,  at  his  discretion.  An  Amer- 
ican bishop  exercised  this  power,  for  what  seemed  to 
him  sufficient  cause,  but  without  notice  or  hearing. 
The  priest  applied  to  the  courts  for  redress,  and  it 


AMERICAN   JURISPRUDENCE  247 

was  held,  in  granting  it,  that  though  it  might  be 
according  to  the  laws  of  that  church  to  deprive  a  man 
of  his  livelihood,  on  a  charge  of  failure  in  duty, 
unheard,  it  was  not  in  accordance  with  the  laws  of 
the  land.1 

The  jurisprudence  of  most  countries  has  been  based 
on  the  conception  of  the  rights  of  the  State  as  against 
individuals.  American  jurisprudence  rests  equally 
on  the  rights  of  the  citizen  against  the  State.  We 
believe  that  the  State  owes  an  active  duty  to  its 
people,  and  that  its  welfare  is  only  important  as 
reflecting  theirs. 

I  have  spoken  of  our  public  prosecutors  for  wrongs 
to  individuals.  Their  appointment  is  but  one  illustra- 
tion of  a  principle  of  American  government  which 
demands  that  all  business,  in  the  well  doing  of  which 
the  public  have  an  interest,  shall  be  done  by  or 
under  the  inspection  of  a  public  officer,  and  so  that 
the  public  may  have  full  knowledge  of  it.  This  has 
brought  a  new  security  to  landed  interests.  It  makes 
it  possible  for  any  man  of  ordinary  education  to  trace 
a  land  title,  because  the  material  is  at  his  command, 
systematically  arranged,  in  a  public  record  office,  not 
stored  in  some  muniment  chest  in  an  old  tower,  nor 
even  buried  in  the  files  of  a  notary,  whose  position 
is  but  half  official. 

Our  rules  of  civil  procedure  are  our  own.  A  few 
States  may  still  adhere  in  name  to  the  cumbrous 
methods  of  English  origin,  but  in  most  we  have,  and 

1  O'Hara  v.  Slack,  90  Pennsylvania  State  Reports,  477. 


248  AMERICAN   JURISPRUDENCE 

in  all  soon  shall  have,  the  simple  rules  of  what,  for 
want  of  a  better  name,  we  call  Code  Pleading.  Orig- 
inating in  New  York,  not  fifty  years  ago,  it  has,  in 
the  lifetime  of  its  distinguished  author,  David  Dudley 
Field,  not  only  overspread  a  large  part  of  our  own 
country,  but  supplanted  the  forms  of  the  common 
law  in  the  very  land  of  their  birth. 

Our  attachment  to  the  principle  of  personal  liberty 
has  modified  the  law  of  civil  process.  Insolvent 
debtors  had  been  treated  in  most  countries  as  a  kind 
of  criminals.  America  began  to  open  their  prison 
doors,  at  the  era  of  the  Revolution.1  It  has  led  to  the 
extension  of  liberty  of  contract.  It  encouraged  us  to 
initiate  a  new  policy  which  the  world  has  copied,  that 
of  giving  free  liberty  of  incorporation  to  all  who  wish 
it,  on  equal  terms,  under  general  laws.2 

The  law  of  evidence  has  been  changed  in  a  vital 
point  In  no  country  before  our  own  has  every  man 
been  admitted  as  a  witness  in  court.  There  have 
been  distinctions  of  class,  exclusions  from  interest, 
exclusions  for  infamy. 

American  jurisprudence  is  unwilling  to  condemn 
the  lowest  or  worst  of  men  unheard ;  it  is  unwilling  to 
believe  that  pecuniary  interest  necessarily  leads  men 
to  forswear  themselves,  or  to  assume  that  every  party 
to  a  suit  would  naturally  perjure  himself  to  get  a  ver- 
dict. The  Roman  law  and  the  rules  of  English 
Chancery  allowed  you  to  force  an  oath  upon  your 

1  See  the  Constitution  of  Pennsylvania  of  1776,  art.  I,  sec.  28;  2 
Poore's  "Charters  and  Constitutions,"  p.  1546. 

2  See  Chapter  VI. 


AMERICAN   JURISPRUDENCE  249 

adversary,  but  only  at  the  cost  of  making  him,  so  to 
speak,  your  own  witness.  We  have  done  more 
wisely,  I  think,  in  admitting  testimony  from  all,  on 
equal  terms,  leaving  it  for  the  triers  to  give  it,  in  each 
case,  such  weight  as  it  may  deserve.  The  first  statute 
of  this  kind  in  America  was  enacted  in  Connecticut, 
in  1848.  Its  author1  soon  afterwards  went  abroad  in 
the  diplomatic  service,  and,  when  in  England,  brought 
it  to  the  attention  of  some  men  of  influence,  through 
whose  efforts  an  Act  of  Parliament,  of  a  similar  nature 
(14  &  15  Viet.,  ch.  99)  was  passed  in  1851. 

We  have  given  a  new  character  to  trial  by  jury. 

The  right  of  the  jury  to  judge  of  the  law  we  have 
extended  to  all  criminal  cases,  and  the  Continental 
plan  of  giving  them  partial  control  over  the  sentence, 
in  case  of  conviction,  has  been  extensively  followed. 

The  authority  of  the  court  has  also  been  weakened 
in  civil  cases,  by  securing  greater  privileges  to  the 
bar  in  shaping  the  terms  of  the  charge.  The  dangers 
of  these  changes  in  the  jury  system  were  forcibly 
portrayed  in  a  paper  read  before  the  American  Bar 
Association,  by  Mr.  Justice  Brown  of  the  Supreme 
Court  of  the  United  States,  in  1889.2  This  mode  of 
trial,  as  it  existed  at  common  law,  was  well  adapted 
to  secure  the  rights  of  the  masses  against  the  classes. 
But  it  was  a  system  of  exact  balances.  It  demanded 
a  free  and  fearless  judge  as  well  as  a  free  and  fearless 
jury.  The  jury  may  drag  the  car  of  justice,  but  the 

1  The  late  Charles  J.  McCurdy,  LL.D.,  afterwards  an  Associate 
Judge  of  the  Supreme  Court  of  Errors  of  Connecticut. 

2  Reports  of  the  American  Bar  Association,  xii.  265. 


250  AMERICAN   JURISPRUDENCE 

judge  must  drive,  or  they  will  drag  it  to  destruction. 
The  inroads  of  the  bar  upon  his  prerogatives  seem  to 
me  a  mark  of  what  I  venture  to  term,  on  the  whole, 
the  degrading  effects  of  the  American  plan  of  an 
elective  judiciary.  It  indicates  a  distrust  of  the  in- 
dependence or  the  intelligence  of  the  court.  It  fore- 
shadows the  gradual  extinction  of  the  jury  trial  in 
civil  causes ;  because  that  can  never  be  permanently 
satisfactory  unless  a  large  discretion,  not  to  say  des- 
potism, is  left  in  the  hands  of  the  thirteenth  man. 

We  have  given,  I  cannot  but  think,  an  undue  prom- 
inence to  judicial  precedents  as  a  natural  source  or 
enunciation  of  the  law.  The  multiplication  of  distinct 
sovereignties  in  the  same  land,  each  fully  officered, 
and  each  publishing  in  official  form  the  opinions  of  its 
courts  of  last  resort,  bewilders  the  American  lawyer  in 
his  search  for  authority.  The  guiding  principles  of 
our  law  are  few  and  plain.  Their  application  to  the 
matter  he  may  have  in  hand  it  is  his  business  to  make, 
and  if  he  spent  more  time  in  doing  it  himself,  and  less 
in  endeavoring  to  find  how  other  men  had  done  it  in 
other  cases,  he  would,  I  believe,  be  better  prepared 
to  inform  the  court  and  serve  his  client. 

There  have  been  lawyers  bold  enough  to  attack  bad 
precedents  in  our  highest  courts  and  to  destroy  them. 
A  conspicuous  instance  of  coming  to  a  right  decision 
by  overturning  a  wrong  one  is  furnished  by  the  his- 
tory of  the  Supreme  Court  of  the  United  States.  In 
1825,  a  libel  in  admiralty  for  seamen's  wages,  earned 
upon  a  steamer  on  the  Missouri  River,  was  dismissed 


AMERICAN   JURISPRUDENCE  251 

for  want  of  jurisdiction,  and,  on  appeal,  Mr.  Justice 
Story  delivered  the  unanimous  opinion  of  the  court, 
that  admiralty  furnished  no  remedies  for  services  that 
were  not  rendered  on  tide-water. 

There  was  no  better  authority  for  this  than  that 
such  had  been  the  rule  of  the  English  Admiralty. 
But  a  quarter  of  a  century  later  the  same  court  speak- 
ing through  a  greater  though  less  learned  judge,  and 
with  but  one  dissenting  voice,  reversed  their  position, 
and  declared  that  America  could  not  adopt  the  Eng- 
lish definition,  by  which,  in  the  terse  phrase  of  the 
Chief  Justice,  "the  description  of  a  public  navigable 
river  was  substituted  in  the  place  of  the  thing  in- 
tended to  be  described."  This  last  decision  in  the 
case  of  The  Genesee  Chief  illustrates  the  manner  in 
which  the  development  of  our  law  has  been  affected 
as  time  has  gone  on  by  changes  in  our  commercial 
conditions,  and  perhaps  in  our  national  mode  of 
thought.  During  the  last  half  century  there  has 
been  a  gradual  but  marked  substitution  of  practical 
for  theoretical  canons  of  decision.  This  freer  spirit 
of  selection  and  adaptation  has  done  much  to  dif- 
ferentiate our  law  of  private  corporations  from  that 
of  England,  and  to  make  the  English  reports  of  con- 
tinually decreasing  value  as  authorities  here.  The 
practical  necessities  of  the  case  have  driven  Ameri- 
can courts  to  extend  to  private  business  corporations 
the  general  Chancery  doctrine  applicable  to  chari- 
table corporations,  that  the  managing  officers  or 
directors  occupy  the  position  of  trustees.  The  Eng- 
lish courts  admit  the  trust  relation  as  regards  the 
shareholders,  but  deny  it  as  respects  the  creditors  of 


252  AMERICAN   JURISPRUDENCE 

the  company.1  And  as  to  the  latter,  we  ourselves 
have  begun  to  doubt  whether  our  decisions  have  not 
gone  too  far,  and  to  draw  the  line  between  transac- 
tions attacked  by  creditors  who  were  such  before  the 
thing  was  done,  and  those  impeached  only  by  par- 
ties to  whom  the  corporation  became  afterwards  in- 
debted, as  well  as  to  limit  the  "  trust-fund  doctrine  " 
to  concerns  already  in  the  hands  of  a  court  of  equity 
or  insolvency  for  winding  up.2 

We  have  also  from  the  first  sought  for  the  powers 
of  a  corporation  in  its  charter,  and  denied  it  any 
which  were  not  in  that  either  given  or  implied.  The 
English  courts  have  held  to  the  assumption  that  a 
corporation  has  all  the  powers  which  it  has  not  been 
forbidden  to  exercise.  The  difference  is  wide,  and 
has  done  much  to  lead  England  to  that  distrust  and 
jealousy  of  corporations  which  has  marked  her  legis- 
lation upon  that  subject  from  early  days. 

The  case  of  The  Genesee  Chief  z  to  which  allusion 
has  been  made,  is  one  of  the  eight  or  ten  decisions  that 
stand  out  as  the  great  landmarks  of  American  juris- 
prudence. I  should  put  first  in  time  that  of  Marbury 
v.  Madison?  in  which  Marshall  asserted  the  right  of  the 
courts  to  declare  any  statute  void  which  was  in  con- 
flict with  the  Constitution.  The  second  place  I  would 
assign  to  Fletcher  v.  Peck?  where  a  private  individual 
was  protected  against  the  revocation  of  a  public  grant. 

1  Poole's  Case,  Law  Reports,  3  Chancery  Division,  322. 

2  Hollins    v.   Brierfield    Coal  &    Iron    Co.,    150   United    States 
Reports,  371. 

8  12  Howard's  Reports,  455.  4  i  Cranch's  Reports,  137. 

6  6  Cranch's  Reports,  87. 


AMERICAN   JURISPRUDENCE  253 

Then  comes  Dartmouth  College  v.  Woodward?-  in 
which  Marshall  read  into  the  words  of  the  Constitu- 
tion a  meaning  which  he  admitted  might  never  have 
been  thought  of  by  the  men  who  framed  or  the 
people  who  ratified  it.  It  made  the  subjection  of  the 
sovereign  State  to  the  performance  of  its  obligations, 
at  the  command  of  the  civil  court,  a  rule  of  our  juris- 
prudence. It  brought  a  new  theory  of  corporate 
rights  into  existence.  If  they  rested  on  a  public  con- 
tract, that  contract  the  public  must  perform. 

To  Milligaris  Case2  we  turn  when  we  seek  the 
limitations  of  individual  liberty  in  time  of  war;  to 
Cummings  v.  Missouri*  for  its  safeguards  against  ex 
post  facto  legislation.  The  Slaughter  House  Cases  * 
brought  sharply  out  the  distinctions  between  the  citi- 
zen of  a  State  and  the  citizen  of  the  United  States. 
In  Loan  Association  v.  Topekaf  those  limitations  on 
the  legislative  power,  which  are  inherent  in  the  nature 
of  a  free  government,  are  stated  with  telling  force,  in 
their  bearing  on  questions  of  a  public  use. 

There  are  other  decisions  of  the  Supreme  Court  of 
the  United  States  which  are  as  often  referred  to  as 
these,  because  they  settle  hard-fought  controversies 
over  the  meaning  of  our  Constitution  in  its  political 
aspects.  Those  that  have  been  mentioned  are  of 
especial  note  in  their  bearing  on  the  relation  of  the 
law  to  the  individual. 

That  a  woman  is  an  individual,  even  if  she  be  a 
wife,  and  does  not  forfeit  her  personal  identity  by 

1  4  Wheaton's  Reports,  518. 
2  4  Wallace's  Reports,  2-124.        8  Ibid.t  277. 
4  1 6  Wallace's  Reports,  78.  5  20  Wallace's  Reports,  655. 


254  AMERICAN   JURISPRUDENCE 

marriage,  is  another  of  the  positions  of  American 
law. 

Our  treatment  of  the  property  relations  of  husband 
and  wife,  as  it  is  now  fixed  by  the  statutes  of  most  of 
our  States,  is  almost  as  far  from  the  Roman  or  Con- 
tinental as  from  the  English  rule.  Its  principle  is 
not  community  but  independence. 

This  separation  of  property  rights  is  but  one  of  the 
inroads  made  by  American  law  on  what  had  been 
regarded  throughout  Christendom  as  the  natural  char- 
acteristics of  the  marriage  relation. 

The  Church  of  Rome  had  declared  marriage  to  be 
a  sacrament,  and  indissoluble  except  by  its  authority. 
The  Protestants  of  the  Reformation  denied  this,  and, 
under  the  Puritans,  civil  marriages  and  civil  divorces 
were  early  American  institutions.  With  the  gradual 
extension  of  the  causes  of  divorce,  and  the  gradual 
abbreviation  of  the  trial  of  a  divorce  case  in  our 
courts,  all  are  now  familiar.  There  have  been  countries 
before  in  which  divorce  was  as  free  in  law,  but  none 
where  it  has  been  so  free  in  fact.  For  five  hundred 
years  the  Roman  husband  could  put  away  his  wife 
at  will,  and  for  five  hundred  years  only  one  availed 
himself  of  his  right,  and  he  was,  like  Napoleon, 
unwillingly  driven  to  it  by  the  demands  of  the 
State. 

It  seems  to  me  that  the  number  of  causes  of  divorce 
recognized  in  American  law  might  well  be  substan- 
tially reduced.  Indeed,  a  movement  in  this  direction 
has  been  made,  which  within  the  past  twenty  years 
has  had  considerable  success.  There  is  a  National 
Divorce  Reform  League,  which  has  been  active  and 


AMERICAN   JURISPRUDENCE  255 

successful,  and  only  three  States1  now  retain  the 
"  omnibus "  clause  in  their  divorce  statutes,  which 
permits  divorces  for  any  cause  satisfactory  to  the 
court. 

But  the  evils  of  our  divorce  system  lie  quite  as 
much  in  our  method  of  procedure.  A  recent  report 
on  this  subject  by  the  Commissioner  of  Labor  of  the 
United  States  showed  that  a  fifth  of  all  American 
divorces  are  granted  to  parties  who  were  married  in 
some  other  jurisdiction.  It  is  well  known  how  short 
a  residence  on  the  part  of  the  petitioner  is  generally 
made  sufficient,  and  on  how  slight  a  notice  to  a  non- 
resident respondent,  the  court  proceeds.  Such  a 
notice  is  always  dictated  in  the  first  instance  by  the 
petitioner's  attorney,  and  his  discretion  in  the  matter 
is  seldom  revised,  if  he  keeps  within  the  letter  of  the 
law,  however  improbable  it  may  be  that  the  other 
party  has  in  fact  any  knowledge  of  the  proceeding. 

So  far  as  divorces  obtained  on  default,  upon  news- 
paper publication,  against  non-residents,  are  con- 
cerned, the  general  rule  of  jurisprudence,  here  and 
everywhere,  is  that  they  are  totally  void,  unless  the 
petitioner  was  domiciled  within  the  jurisdiction  of  the 
court,  or  the  marriage  was  celebrated  there.  Just 
such  American  divorces  have  been  disregarded  in 
England  and  in  Canada,  and  a  second  marriage  by 
the  divorced  party  treated  as  bigamy.2  The  Ameri- 
can Bar  Association,  ten  years  ago,  drafted  a  statute 
to  remedy  this  evil,  by  making  domicile,  instead  of 

1  Washington,  Kentucky,  and  Rhode  Island. 

2  Briggs  v.  Briggs,  English  Law  Reports,  5  Probate  and  Divorce, 
163. 


256  AMERICAN   JURISPRUDENCE 

residence,  the  test  of  jurisdiction,  which  has   been 
adopted  in  two  States.1 

I  have  sought  to  state  only  such  of  the  leading 
features  of  American  jurisprudence  as  are  not  found 
in  other  systems  or  not  found  under  similar  condi- 
tions. One  may  be  added  of  minor  importance,  but 
interesting,  as  the  natural  and  spontaneous  growth  of 
the  soil.  It  is  the  new  rule  of  partnership  law  by 
which  the  death  of  a  partner  in  a  mine  does  not  dis- 
solve the  partnership.  The  rough  and  dangerous  life 
of  the  mining  camp  demanded  the  innovation  and 
obtained  it,  at  the  hand  of  the  courts,  without  aid 
from  statute. 

The  drift  of  American  jurisprudence,  particularly 
in  the  Pacific  States  and  the  New  West,  is  towards 
the  expression  of  the  law  in  an  orderly  and  official 
'form;   in  other  words,  towards  codification.     It  has 
approached  the  question  from  the  practical  side,  and 
in  a   practical  way.     The   early   colonies   soon   put 
Uheir   scanty  statutes   into   print,  arranged    in  some 
[convenient  way  for  ready  reference,  the  various  heads 
'often  following  each  other  in  alphabetical  order,  as 
in  our  digests  of  reports.      New  York  led  the  way 
towards  a  more  systematic  and  comprehensive  treat- 
ment of  the  subject,  by  her  Revised  Statutes  of  1827, 
—  a  revision  which,  though  in  many  points  revolu- 
tionary, was  so  well  considered  and  well  done  that  it 
has  held  the  ground  for  over  half  a  century,  while  in 
most  of  our  States  revision  succeeds  revision  every 
ten  or  fifteen  years. 

1  Minnesota  and  New  Hampshire. 


AMERICAN   JURISPRUDENCE  257 

But  there  is  nothing  distinctively  American  in  codi- 
fication. It  is  simply  un-English.  It  is  the  natural 
aim  and  end  of  every  system  of  jurisprudence,  —  of 
jurisprudence  itself,  apart  from  any  particular  system 
of  it.  Jurisprudence  is  the  science  of  law,  and  the  or- 
derly statement^  of  its  rules  can  be  called  by  no  better  \ 
name  than  Code. 

I  have  used  the  term  "  American  jurisprudence" 
as  meaning  the  scientific  conception  of  that  system 
of  law  judicially  administered  within  the  United 
States,  —  not  alone  the  science  of  American  law,  or 
the  science  of  law  as  applied  to  America.  It  is  the  , 
judicial  administration  of  law  which,  with  us  espe- 
cially, gives  it  a  character  and  vitality  of  its  own. 

It  was  a  true  and  profound  remark  of  De  Tocque- 
ville,  that  the  extension  of  judicial  power  in  the 
political  world  ought  to  be  in  the  exact  ratio  of  the 
extension  of  elective  offices ;  for  if  these  two  institu- 
tions do  not  go  hand  in  hand,  the  State  must  fall  into 
anarchy  or  into  subjection. 

Our  county  courts,  our  justices  of  the  peace,  with 
combined  administrative  and  judicial  functions,  our 
judge-made  law,  our  Constitutions,  as  interpreted  and 
expanded  from  the  bench  into  something  far  wiser 
and  better  than  their  builders  knew,  these,  quite  as 
much  as  our  printed  statute-books,  are  the  sources 
and  safeguards  of  our  rights  and  liberties. 

There  are  few  countries  where  the  removal  of  pub- 
lic officials  is  as  difficult,  often  as  impossible,  as  with 
us.  There  is  no  country  where  the  power  of  the 

17 


258  AMERICAN   JURISPRUDENCE 

courts  to  direct  their  action  and  to  punish  their 
misconduct  is  as  great. 

Nor  is  it  the  executive  office  only  which  is  thus 
amenable  to  judicial  control.  The  subjection  of  the 
legislature  to  written  rules,  enforceable  by  the  courts, 
is  a  feature  peculiar  to  American  jurisprudence. 

The  honor  of  framing  the  first  written  constitution 
of  government  which  deserves  that  name,  belongs,  I 
believe,  to  the  early  settlers  on  the  banks  of  the  Con- 
necticut ;  but  it  was  not  till  another  century  that  we 
find  the  judiciary  recognized  as  the  guardians  of  Con- 
stitutions, and,  as  such,  the  superiors  of  the  legislature. 

It  is  a  power  that  could  only  be  intrusted  to  a 
trained  bench  of  trained  lawyers,  and  which  could  only 
be  exercised  in  a  land  where  government  is  settled  on 
deep  foundations  and  protected  by  the  free  force  of 
public  opinion.  It  has  given  birth  to  what  is  really  a 
new  science  of  political  law,  for  constitutional  law, 
as  we  use  that  term,  is  wholly  an  American  creation. 
..This  function  assigned  by  us  to  the  judiciary  has 
I/found  no  place  in  the  institutions  of  our  sister  Amer- 
ican republics.  Colombia  has  made  it  the  subject  of 
a  singular  compromise  in  her  Constitution  of  I886.1 
No  bill  can  become  a  law  without  the  approval  of  the 
President  of  the  republic,  unless  passed  over  his  veto 
by  a  two-thirds  vote.  If  his  disapproval  should  be 
based  on  the  belief  that  it  is  unconstitutional,  the 
Supreme  Court  are  to  decide  within  six  days  whether 
his  opinion  is  well  founded.  If  they  agree  with  him, 
the  bill  fails ;  if  they  hold  it  constitutional,  it  becomes 

1  Supplement  to  Annals  of  the  Am.  Academy  of  Political  and 
Social  Science,  1893,  pp.  38,  56. 


AMERICAN   JURISPRUDENCE  259 

the  law.  The  judges  are  thus  brought,  in  a  most  ob- 
jectionable manner,  into  direct  and  public  collisions 
either  with  the  executive  or  the  legislature.  Such  a 
device  only  belongs  to  a  country  whose  history  is 
that  of  revolutions. 

The  occasional  and  peaceful  exercise  of  the  active 
sovereignty  of  the  people  in  direct  legislation,  through 
special  delegates  meeting  for  a  special  purpose,  is  j 
an  American  idea,  —  American,  that  is,  as  applied  to 
governments  embracing  an  extensive  territory  and 
founded  on  representative  institutions.  The  city- 
State  could  furnish  no  precedent  for  us,  and  we  were 
equally  remote  from  that  state  of  society  which 
Tacitus  describes  as  existing  in  his  day  among  our 
Teutonic  ancestors :  "  De  minoribus  principes  consul- 
tant: de  majoribus  omnes" 

We  call  upon  the  people  to  act  only  on  matters 
of  fundamental  law.  In  our  constitutional  conven- 
tions they  resume,  at  long  intervals,  for  a  few  weeks' 
time,  their  delegated  powers,  and  re-found  the 
State. 

Conventions  of  the  people,  national  assemblies, 
are  common  enough  in  history,  but  their  work  has 
been,  or  come  to  be,  that  of  revolution.  Our  sister 
republic,  France,  has  not  ventured  to  follow  us  in , 
trusting  the  people  with  this  great  power,  and  in 
waiting  for  them  to  act,  whatever  the  emergency 
may  be.  Her  plan  is  that  if  each  house  of  the  legis- 
lature deems  a  revision  of  the  Constitution  necessary, 
they  may  meet  at  once  in  joint  assembly  and  effect 
it  by  a  bare  majority. 


260  AMERICAN   JURISPRUDENCE 

A  direct  reference  to  the  people,  at  the  polls,  of 
proposed  changes  of  a  constitutional  character  is 
also  one  of  our  American  institutions.  The  Colony 
of  Connecticut  introduced  it  during  the  seventeenth 
century,  and  it  was  incorporated  in  the  Constitution 
of  the  State,  in  iSiS.1  It  has  become  familiar  in 
European  practice,  under  the  Swiss  system  of  the 
referendum,  but  perverted  to  the  questionable  use 
of  submitting  mere  questions  of  administrative  policy 
to  popular  decision. 

This  system  of  American  jurisprudence  whose 
lines  I  have  tried  to  trace,  is  the  living  voice  of 
the  American  bar,  —  of  the  American  bar  of  many 
generations.  The  spoken  word,  uttered  by  a  Thomas 
Lechford,  or  James  Otis,  or  Patrick  Henry,  or  John 
Marshall,  in  other  days,  may  be  forgotten.  But, 
if  it  stirred  men's  hearts;  if  it  sank  into  men's 
minds ;  if  it  carried  conviction ;  if  it  was  the  foun- 
dation of  verdicts  and  judgments,  customs  and 
statutes,  the  circle  of  its  influence  is  widening 
still. 

There  are  those  who  tell  us  that  all  that  is  said  on 
earth,  when  it  dies  to  the  human  ear,  floats  on,  upon 
the  wings  of  air,  to  remain  forever  a  witness  for 
or  against  us,  in  the  life  beyond.  It  may  be  so ; 
but  whether  physical  force  be  or  be  not  eternal 
and  inextinguishable,  it  is  so  that  the  influence 
of  human  thought  in  the  development  of  institutions 
will  last  as  long  as  the  history  of  civilization. 

The   science   of    American   jurisprudence    is  just 

1  Papers  of  the  New  Haven  Colony  Historical  Society,  v.  182. 


AMERICAN   JURISPRUDENCE  261 

beginning  to  crystallize  into  form.  The  new  race, 
whose  character  it  speaks,  is  still  but  half  de- 
veloped. 

The  bar  in  this  is  their  mouth-piece.  The  practis- 
ing lawyer  finds  his  days  passing  all  too  swiftly 
in  the  common  routine  of  the  office  and  the  court- 
room ;  and  as  he  is  advising  his  clients,  or  advocating 
their  causes,  hardly  feels  that  he  is  doing  anything 
which  can  outlive  the  occasion  that  calls  it  forth. 
But  the  consultation,  the  argument,  the  opinion, 
by  which  the  conduct  of  men,  the  disposition  of 
controversies  or  their  prevention,  is  determined,  have 
an  influence  wider  than  we  think. 

These  are  the  materials  from  which  is  being  built 
up,  by  slow  and  imperceptible  accretion,  a  new 
jurisprudence.  The  philosophy  of  the  law  must  be 
founded  on  the  practice  of  the  law. 

Others  in  after  years  may  be  the  ones  to  trace 
out  the  succession  and  growth  of  general  ideas,  to 
formulate  propositions,  to  array  conclusions  in  scien- 
tific arrangement;  but,  after  all,  what  they  give 
is  only  form.  The  substance  of  our  jurisprudence 
must  be  the  work  of  the  plain,  average  American 
lawyer.  It  is  a  monument  like  the  great  pyramid, 
to  perpetuate,  not  the  names  of  those  who  made 
it,  but,  what  is  better,  their  work;  and,  better  still, 
it  is  not  to  perpetuate  all  their  work,  but  only  what 
was  best  in  it. 

It  has  been  finely  said  by  one  of  the  first  of  liv- 
ing American  jurists J  that,  "  The  glory  of  lawyers,  like 

1  Judge  Oliver  Wendell  Holmes. 


262  AMERICAN   JURISPRUDENCE 

that  of  men  of  science,  is  more  corporate  than  indi- 
vidual. Our  labor  is  an  endless  organic  process. 
The  organism  whose  being  is  recorded  and  protected 
by  the  law  is  the  undying  body  of  society." 

This  work  in  America  began  with  the  first  begin- 
nings of  its  history,  and  will  continue  till  that  history 
ends.  It  has  had  at  all  times  the  stamp  of  individual- 
ity. It  has  called  no  man  master.  It  has  never 
copied  where  it  served  its  purpose  better  to  originate. 
It  struck  out  primogeniture  because  it  believed  an 
equal  distribution  of  property  the  best  foundation  of 
republican  government.  It  forced  every  deed  on 
record,  without  respect  to  feelings  of  family  pride.  It 
brought  justice  within  the  reach  of  every  man  by  a 
system  of  county  courts  and  magistracies,  under 
which  the  judge  comes  to  meet  the  parties,  instead  of 
forcing  them  to  travel  to  the  seat  of  government. 

It  is  now  perplexing  the  national  judiciary,  as  they 
are  called  on  to  declare  the  limits  of  public  manage- 
ment of  private  property.  Must  a  man,  whose  busi- 
ness has  been  established  under  one  law,  submit, 
uncompensated,  to  its  destruction  by  another?  Can 
a  State  demand  of  its  railroads  that  they  shall  reduce 
their  fares  or  freight-charges  so  low  as  to  preclude  a 
dividend  upon  their  stock?  Can  it  require  them  to 
build  new  stations,  or  reconstruct  their  roadbed,  with 
no  regard  to  their  financial  ability?  Is  the  police 
power  of  a  State  susceptible  of  legal  definition  —  that 
is,  of  legal  restraint?  Such  questions  are  now  occu- 
pying and  often  dividing  the  Supreme  Court  of  the 
United  States.  They  are  peculiar  to  our  system  of 
government.  They  illustrate  its  merits  and  its  de- 


AMERICAN   JURISPRUDENCE  263 

fects.  They  are  but  the  latest  instances  of  a  long 
series  of  great  judicial  problems  which  have  arisen 
under  our  institutions,  and  which  could  have  arisen 
nowhere  else. 

For  the  first  of  them  we  may  look  back  to  the  very 
beginning  of  our  colonial  records.  Nor  need  we  be 
surprised  that  American  jurisprudence  should  have 
taken,  so  early,  a  trend  and  aspect  of  its  own.  The 
general  circulation  of  ideas,  the  general  diffusion  of 
knowledge,  that  was  rendered  possible  by  the  inven- 
tion of  printing,  was  not  rendered  practicable  until 
books  became  so  plenty  as  to  be  cheap,  and  instead 
of  being  published  in  Latin,  were  given  to  the  com- 
mon people  in  their  own  language.  This  time  came 
to  England  about  three  hundred  years  ago.  The 
Elizabethan  age  was  a  creative  age  in  literature  and 
philosophy,  and  the  English,  who  planted  our  first 
colonies,  came  here  under  the  influence  of  its  inspira- 
tion. Their  business  was  to  found  governments; 
their  literature  was  statute  law;  their  gathering- 
place,  if  not  the  church,  was  the  court-room  or  the 
town-meeting.  Such  men,  thrown  upon  their  own 
resources,  under  new  conditions  of  society,  could 
not  fail  to  make  a  better  law  for  themselves  than 
they  could  find  anywhere,  whether  in  use  or  in 
history. 

The  political  and  commercial  differences  between 
the  English  colonies  and  England,  which  showed 
themselves  as  soon  as  property  began  to  accumulate 
here,  and  which  culminated  in  our  independence, 
kept  alive  this  spirit  of  free  inquiry  into  the  reason 
and  causes  of  things. 


264  AMERICAN   JURISPRUDENCE 

The  repellent  influences  of  the  Revolution  taught 
us  to  look  more  to  the  Continent  for  our  exam- 
ples. Montesquieu's  Esprit  des  Lois,  published  about 
the  middle  of  the  last  century,  had  a  profound 
effect  throughout  America.  The  same  may  be  said 
of  Beccaria's  work  on  Crimes  and  Punishments,  which 
appeared  twenty  years  later.  Then  came  the  French 
alliance,  and  the  French  ideas  that  Jefferson  and 
Franklin  brought  home  from  a  long  residence  abroad. 
And  from  those  days  to  these,  not  only  have  Ameri- 
cans been  familiar  with  what  comparative  legislation 
has  to  teach,  but  they  themselves  have  been  growing 
more  and  more  into  a  new,  composite  nationality,  the 
roots  of  which  strike  back  into  every  land  whose 
institutions  are  in  sympathy  with  the  spirit  of  modern 
civilization. 

Our  system  of  jurisprudence  has  been  built  up 
during  an  era  of  ever-increasing  power  and  prosperity 
—  the  glad  youth  of  a  new  race.  It  has  served  us 
well  thus  far.  Will  it  be  found  equally  adapted  to 
those  other  days  that  are  sure  to  come,  when  a 
denser  population  will  crowd  the  land ;  when  immi- 
gration is  discouraged  or  repelled;  when  there  are 
no  more  virgin  forests  or  virgin  fields ;  when,  perhaps, 
added  duties  of  the  general  government  give  it  a  still 
greater  weight,  relatively  to  the  States? 

So  far  as  we  can  forecast  this  future,  it  may,  I 
believe,  be  our  hope  and  our  confidence  that  the 
forces  of  universal  education,  and  of  universal  suf- 
frage, bringing  individual  responsibility,  will  keep  it 
in  healthy  and  symmetric  growth. 


AMERICAN   JURISPRUDENCE  265 

The  American  race  has  built  up  an  American  juris- 
prudence. It  knows  its  value.  It  will  modify  it,  as 
new  conditions  arise,  but  it  will  never  surrender  its 
essential  characteristics,  its  spirit  of  self-reliance,  its 
principle  of  equal,  even-handed  justice  to  all. 


CHAPTER  VIII 

THE  DECADENCE    OF  THE    LEGAL  FICTION1 

NO  student  of  political  science  or  legal  history  is 
ignorant  of  the  large  part  which  fictions  of 
law  have  assumed  in  the  development  of  both.  The 
steps  of  human  progress  are  slow  and  uneven,  and 
those  who  direct  it  have  often  found  that  the  shortest 
way  is  not  the  straightest.  The  legal  fiction  is  the 
invention  of  a  rude  people  struggling  towards  the 
light.  It  comes  from  rulers  who  find  the  existing 
law  not  sufficiently  pliant  to  serve  their  purposes. 
They  may  be  kings,  or  priests,  or  judges.  They  may 
be  the  power  behind  the  throne,  the  altar,  or  the 
bench :  commonly  they  are ;  and  it  is  to  lawyers  act- 
ing, not  as  the  court,  but  as  the  advisers  or  officers  of 
the  court,  that  most  legal  fictions  now  in  use  owe 
their  beginning. 

Law  and  society  are  the  two  forces  that  produce 
government,  and  they  seldom  pull  together.  One  or 
the  other  is  in  the  advance.  One  or  the  other  must 
always  be  in  the  advance,  dragging  the  other  after  it, 
as  best  it  may,  save  under  those  governments  which 
are  at  the  dead  level  of  low-tide  or  of  high-tide.  In 
the  masterly  chapter  of  his  "  Ancient  Law,"  in  which 
Sir  Henry  Maine  touches  this  general  question,  he 

1  In  discussing  this  topic  use  has  been  made  of  an  address  delivered 
by  the  author  before  the  Tennessee  State  Bar  Association,  on  Look- 
out Mountain,  in  1884. 


THE  LEGAL  FICTION  267 

tells  us  that  the  gap  between  them,  in  the  past  history 
of  progressive  nations,  has  always  been  filled  by  {he 
agency  of  three  things :  Legal  Fictions,  Equity,  and 
Legislation,  succeeding  each  other  in  that  order,  the 
roughest  first.  Not,  of  course,  that  development  by 
legal  fictions  stops  when  equitable  principles  are  first 
adopted,  or  that  equity  cannot  be  embodied  in  statute 
form.  All  these  devices  may  be  resorted  to  at  the 
same  period,  and  in  disposing  of  the  same  case;  but 
the  origin  of  each  is  at  a  different  epoch. 

In  all  English-speaking  peoples  of  our  day  it  is 
society  which  is  ever  in  the  lead ;  law  which  is  ever 
holding  back  —  as  the  conservative  force,  as  the  rep- 
resentative of  the  past.  Our  race  in  the  past  found 
legal  fictions  so  useful  in  the  development  of  its  sys- 
tem of  public  administration  that  it  multiplied  them, 
more  rapidly  than  any  other  people.  Of  late  it  has 
shed  them  more  rapidly  than  any  people. 

That  the  king  can  do  no  wrong  was  one  of  them. 
Put  in  the  form  of  an  axiom,  it  long  had  the  force  of 
one,  and  became  almost  an  article  of  faith  for  half  of 
England.  It  did  not  survive  the  Stuarts  as  a  national 
belief,  but  as  the  expression  of  a  sound  maxim  of 
national  policy,  it  did,  and,  as  such,  is  still  the  founda- 
tion of  her  system  of  government  by  a  responsible 
ministry. 

A  legal  fiction  may  take  the  shape  of  a  judicial 
presumption,  which  it  is  not  permissible  to  contro- 
vert. Title  by  prescription  or  adverse  possession 
was  originally  rested  on  the  assumption  that  there 
must  have  been  a  grant,  the  evidence  of  which  had 
been  lost,  of  what  had  been  long  and  peaceably  en- 


268  THE   DECADENCE   OF 

joyed.  There  are  few  titles  that  could  be  traced  far 
back  without  reliance  on  this  means  of  support. 
Every  one  knows  that,  in  fact,  there  was  often  no 
grant,  but  a  mere  usurpation,  —  that  too  often  "  prop- 
erty is  robbery."  In  many  cases  it  would  be  possible 
to  prove  this  with  absolute  certainty ;  but  no  such 
proof  is  allowed.  It  was  excluded,  in  early  times,  by 
force  of  the  fiction  of  a  lost  grant,  because  that  was 
the  easiest  mode  of  satisfying  the  popular  conscience. 
In  our  day,  it  is  excluded  because  all  men  have  come 
to  agree  that  it  is  a  necessary  rule  of  public  policy 
that  long  continued  and  undisturbed  possession 
should  be  defended  at  all  costs. 

Legal  procedure  in  the  English  courts  was  long 
disgraced  by  fictions  of  mere  convenience,  sanctioned 
by  courts  that  were  anxious  to  extend  their  jurisdic- 
tion by  indirect  or  covert  means.  Many  of  these 
were  copied  in  America.  Writs,  judgments,  and  in- 
dictments were  alike  full  of  them.  One  could  not 
sue  for  the  value  of  an  article  which  had  been  lent 
and  carelessly  destroyed,  without  setting  up  that  it 
had  been  lost  and  casually  found  by  the  defendant, 
and  that  he  had  afterwards  converted  it  to  his  own 
use.  An  action  to  compel  the  payment  of  a  disputed 
claim  could  only  be  maintained  upon  the  statement 
that  there  had  been  a  promise  to  pay  the  money, 
although  in  fact  it  was  not  pretended  that  such  a 
promise  was  ever  made. 

Most  of  these  legal  fictions  have  gradually  faded 
out  of  existence  during  the  last  half  century.  They 
have  perished  by  a  biologic  law,  as  applicable  to  legal 
conceptions  as  to  physical  beings.  They  were  in- 


THE  LEGAL  FICTION  269 

capable  of  adjustment  to  their  environment  in  modern 
society. 

Maine  has  said  that  "  no  institution  of  the  primitive 
world  is  likely  to  have  been  preserved  to  our  day, 
unless  it  has  acquired  an  elasticity  foreign  to  its  orig- 
inal nature,  through  some  vivifying  legal  fiction." 1 
If  this  be  so,  it  is  also  true  that  no  such  institution 
can  flourish  in  a  civilized  community  of  our  day,  un- 
less it  can  throw  off  its  form  of  fiction,  and  found  it- 
self on  solid  reasons  and  sober  truth.  The  "  common 
recovery "  by  which  a  fictitious  suit  was  so  long 
allowed  to  change  the  course  of  succession  to  landed 
property,  was  a  convenient  means  of  accomplishing  a 
desirable  end,  but  its  basis  of  false  assumptions  made 
it  intolerable  to  modern  England,  and  it  gave  place 
sixty  years  ago,  by  Act  of  Parliament,  to  the  "  disen- 
tailing deed."  2  Where  a  statute  can  thus  perpetuate 
a  policy  which  is  found  in  accordance  with  the  social 
ideas  of  an  age  later  than  that  which  gave  it  origin,  a 
legal  fiction  dies  like  the  phoenix,  to  live  again  in 
higher  form.  But  that  which  does  not  merit  the 
sanction  of  legislation  seldom  ought  to  be  retained 
by  the  sufferance  of  courts. 

A  few  such  still  linger  as  a  reproach  to  American 
law.  One  may  serve  to  illustrate  the  rest,  and  it  is 
one  to  which  I  particularly  desire  to  direct  attention 
in  the  hope  that  this  may  assist  in  forwarding  its  ulti- 
mate disappearance.  It  has  served  its  day,  and  is 
embedded  in  our  jurisprudence  only  as  the  fossil  shell 
of  a  distant  age. 

1  Ancient  Law,  chap.  viii.  p.  256. 

2  By  a  statute  of  3  &  4  William  IV. 


270  THE   DECADENCE   OF 

I  refer  to  insanity  as  a  legal  fiction.  It  bridged  the 
way  for  us,  as  it  did  for  the  Romans,  from  rude  con- 
ditions of  society  to  better  ones ;  but  the  bridge  is 
passed  and  nothing  is  to  be  risked  by  burning  it 
behind  us. 

The  significance  of  human  acts  is  their  intent.  A 
man  really  does  only  what  he  means  to  do.  It  is  all 
he  can  do,  and  all  he  can  be  held,  in  the  forum  of  con- 
science, responsible  for  doing.  The  only  absolute 
proof  of  an  absence  of  intent  is  by  showing  an  inca- 
pacity of  forming  it.  The  sane  man  may  at  times 
intentionally  do  very  unreasonable  and  very  wrong 
things.  The  insane  man  never  can ;  because  to  him 
there  is  no  reason  and  no  wrong. 

What  wonder,  then,  that  under  a  criminal  code  of 
great  severity,  yet  acknowledging  to  the  fullest  extent 
that  actus  non  facit  reum,  nisi  mens  sit  rea,  the  English 
bar  should  have  early  resorted  to  the  plea  of  insanity, 
when  there  was  little  to  sustain  it  but  the  sympathy  of 
the  jury  and  the  eloquence  of  the  advocate  ?  What 
wonder  that  the  coroner's  inquests  of  a  land  where 
suicide  doomed  a  man's  family  to  beggary,  and  his 
corpse  to  outrage,  should  seize  upon  the  same  device 
to  protect  his  grave,  transparent  as  the  veil  might  be? 
What  wonder  that  the  will  that  stripped  wife  and  chil- 
dren of  their  just  expectations  was  by  the  same  make- 
shift set  aside  in  favor  of  the  distribution  made  by 
law? 

It  is  no  wonder  that  these  precedents  are  stamped 
deep  upon  the  pages  of  English  law.  It  was  the 
natural  and  happy  expedient  by  which  outgrown 


THE  LEGAL  FICTION  271 

statutes,  that  Parliament  refused  to  alter,  were  for- 
bidden by  English  judges  and  English  lawyers  to 
oppress  the  innocent. 

But  it  was  still,  at  best,  a  pious  fraud.  It  would 
have  been  unworthy  of  a  people  who  controlled  their 
own  legislation.  It  was  the  protest  of  the  community 
against  statutes  that  they  could  not  alter  and  would 
not  obey.  We  have  no  such  excuse  for  perpetuating 
the  era  of  legal  fiction.  Our  legislatures  are  the 
quick  reflex  of  public  sentiment,  too  ready  to  stamp 
with  their  approval  anything  that  their  leaders  can 
suggest. 

Has  not  the  time  fully  come  when  the  American 
lawyer  should  be  relieved  from  ever  claiming  insanity 
when  he  knows  that  it  does  not  exist? 

Take,  first,  the  case  of  a  hard  will,  which  thrusts 
aside  children  in  favor  of  strangers,  or  enriches  one 
at  the  expense  of  others  more  deserving  but  less 
importunate. 

It  is  no  new  case.  Every  will  disturbs  what  the 
law  deems  the  natural  course  of  descent,  and  many 
wills,  from  earliest  times,  among  all  nations,  have  dis- 
turbed it  unreasonably.  What  remedy  did  Rome, 
the  great  mother  of  most  modern  law,  have  to  sug- 
gest? A  formal  suit,  called  the  complaint  of  an  un- 
dutiful  will,  which  was  known  in  practice  at  least  as 
early  as  the  best  days  of  the  republic.1  In  this  action, 
the  contestant  did  not  claim  that  what  was  propounded 
as  a  will  was  no  will,  but  that  it  was  an  unreasonable 
will. 

Rome,  too,  was  originally  forced    in  framing  her 

1  Heineccius,  Antiq.  Rom.,  lib.  ii.  tit.  17,  §  5. 


272  THE   DECADENCE   OF 

writ  to  resort  to  the  legal  fiction  that  the  remedy 
rested  on  the  ground  that  the  testator's  mind  could 
not  have  been  well-balanced;  but  this  pretence  was 
soon  virtually  abandoned. 

"  The  action  concerning  undutiful  wills,"  says  Mar- 
cian,1 "  sets  up  a  colorable  ground,  as  if  the  testator  was 
not  of  sound  mind  enough  to  make  a  will.  And  this  is 
said,  not  as  though  he  were  truly  a  madman  or  de- 
mented, for  his  will  he  has  indeed  made  well  enough 
as  a  will,  but  not  in  accordance  with  the  duty  of  nat- 
ural affection ;  for  if  he  were  truly  a  madman  or  de- 
mented, there  is  no  will." 

To  say  that  a  will  was  undutiful  was  to  say  that 
some  one  had  been  improperly  disinherited  or  passed 
over,  which,  said  Marcellus,  often  happens  when  par- 
ents act  under  some  false  prejudice  against  their  chil- 
dren. You  might  claim  that  a  will  was  void,  or  that 
it  had  been  revoked,  or  that  it  was  undutiful,  but  you 
could  not  make  all  these  claims  at  the  same  time. 
Each  must  be  heard  and  decided  by  itself.2  The 
legatee  who  attacked  the  will  as  undutiful,  and  lost 
his  case,  lost  his  legacy  too,  unless  he  abandoned  the 
attack  as  soon  as  the  defence  appeared  to  be  well 
founded.3 

Nor  did  Roman  law  stop  here.  The  legacies  which 
could  be  charged  on  the  executor  and  residuary  lega- 
tee, who  was  generally  the  next  heir,  were  restricted 
in  amount  by  a  succession  of  statutes,  and  finally 
limited,  in  the  time  of  the  early  empire,  so  as  never 
to  exceed  three-quarters  of  the  net  estate.4 

1  Digest,  v.  2,  de  inofficioso  Testamento,  2. 

2  Dig.  v.  2,  12.  8  Dig.  v.  2,  14.  *  Dig.  v.  2,  9. 


THE  LEGAL   FICTION  273 

Similar  provisions  are  to  be  found  in  most  countries 
of  modern  Europe,  —  in  most  civilized  countries  of 
the  modern  world.  They  were  brought  into  English 
law  by  the  Normans,  and  remained  there  until  the 
days  of  Henry  VIII. 

"  Let  the  goods  of  gavelkynd  persons,"  says  the 
old  Custumal  of  Kent,  also,  "be  parted  into  three 
parts,  after  the  funerals  and  debts  paid,  if  there  be 
lawful  issue  in  life ;  so  that  the  dead  have  one  part 
and  his  lawful  sons  and  daughters  another  part,  and 
the  wife  the  third  part;  and  if  there  be  no  lawful  issue 
in  life,  let  the  dead  have  one-half  and  the  wife  alive 
the  other  half." l 

No  doubt  these  limitations  on  the  power  of  bequest 
originated  in  nations  where  the  family,  rather  than  the 
individual,  was  the  unit  of  society.  But  be  the  polit- 
ical theory  of  government  what  it  may,  we  never  can 
eradicate  family  affection  and  family  duty  from  their 
dominant  position  among  the  controlling  forces  of 
civilization.  They  must  be  recognized,  and  they 
must  be  protected.  The  father  who  causelessly  dis- 
inherits a  dutiful  child  commits  a  wrong  which,  in 
some  way,  governments  must  redress.  The  Parlia- 
ment of  England,  in  the  Statute  of  Wills,  might  sweep 
the  old  way  out  of  the  common  law,  and  provide 
no  other ;  but  this  simply  left  it  for  the  people  and  the 
lawyers  of  England  to  devise  some  new  mode  of  pro- 
tection. They  devised  the  fiction  of  insanity,  and  for 
three  hundred  years  they  and  we  have  gone  on,  sol- 
emnly setting  aside  wills  of  unreasonable  men  on  the 
pretence  that  they  were  insane  men. 

1  Crabbe,  Hist.  Eng.  Law,  93. 
18 


274  THE   DECADENCE   OF 

May  it  not  be  wiser  to-day  to  acknowledge  that  in 
this  matter,  as  in  some  others,  Henry  VIII.  was 
wrong  and  the  world  right?  Some  of  our  States 
have  already  moved  in  this  direction.  In  many,  of 
late  years,  we  find  statutes  limiting  bequests  to  public 
charities;  in  a  few,  statutes  guaranteeing  a  certain 
portion  of  the  estate  to  the  children,  if  any  there  be. 
There  will  be  more  such  laws  as  time  goes  on ;  and  as 
their  legitimate  result,  there  will  be  less  of  legal  fiction 
in  our  probate  courts. 

Next  come  a  class  of  cases  where  the  compassion 
of  a  coroner's  jury  has  been  accustomed  to  hide  itself 
behind  the  verdict  of  temporary  insanity. 

In  ancient  times  we  all  know  that  suicide  was  looked 
on  with  no  unkindly  eye.  No  man,  they  said,  could 
rightly  complain  that  his  life  was  miserable,  since  he 
had  it  in  his  own  power  at  any  time  to  open  the  door 
and  step  out  of  it.  That  is  no  prison  which  one  can 
leave  at  will.  The  Greek  and  Roman  moralists  did 
not,  indeed,  consider  it  often  a  right  act.  It  was 
desertion  of  the  post  of  duty  to  which  the  gods  have 
assigned  us.  It  was  withdrawing  from  your  country 
the  services  she  had  a  right  to  demand.  It  was  cow- 
ardly not  to  be  able  to  stand  up  under  suffering,  how- 
ever heavy  the  load. 

The  State  went  so  far  as  to  punish  the  act  of  suicide 
by  a  criminal  with  confiscation  and  with  infamy,  but 
it  was  because  otherwise  he  would  escape  unpunished 
for  his  original  offence.1  The  man  who  killed  himself 
from  weariness  of  life,  or  mortification  at  being  insol- 
vent, or  impatience  of  disease,  stood  uncondemned. 

1  Dig.  xlix.  14,  de  Jure  Fisci,  45,  2. 


THE  LEGAL  FICTION  275 

No  Roman  law-giver,  no  Roman  philosopher,  ever 
dreamed  that  suicide  was  a  natural  mark  of  insanity. 
They  knew,  and  we  know,  that  it  is  too  often  the  fruit 
of  long  and  cool  deliberation.  It  occurs  oftenest  in 
highly  civilized  communities.  It  is  not  a  thing  that 
always  and  instinctively  shocks  the  moral  sense.  On 
the  contrary,  apart  from  considerations  founded  on 
religion,  the  question,  Is  life  worth  living?  is  one 
which  many  a  man  may  hesitate  to  answer,  and  as 
to  which  the  man  who  thinks  most  deeply  and  most 
clearly  might  hesitate  longest.  It  is,  no  doubt,  an 
awful  thing  to  enter  unbidden  into  the  presence  of 
the  Almighty.  There  is  an  audacity  in  it  to  which 
few  are  equal.  There  is  a  recklessness  in  it  of  which 
few  will  be  guilty.  But  that  the  fatal  act  may  come 
from  an  unclouded  mind  and  a  steady  hand  who 
can  doubt?  Many  is  the  man  to-day  who  would 
willingly  let  go  of  life  if  it  could  be  relinquished 
painlessly  to  himself  and  honorably  to  those  left 
behind  him,  and  if  he  had  no  hope,  no  fear  of  a  life 
beyond.  It  would  substitute  certainty  for  uncer- 
tainty ;  rest  for  toil,  anxiety,  apprehension :  it  would, 
that  is,  if  he  were  unaffected  by  the  teaching  of  reve- 
lation, or  the  instincts  of  natural  religion.  The  law  is 
unaffected  by  them,  and  it  is  a  legal  question  only 
that  is  now  under  consideration. 

It  was  Saint  Louis,  of  France,  who  first  introduced 
the  practice  of  confiscating  the  estate  of  every  sui- 
cide, which,  long  since  discarded  in  the  country  of 
its  origin,  remains  still  a  disgrace  to  the  statute- 
books  of  England.  It  was  one  of  the  first  acts  of 
Tennessee,  in  her  original  Constitution,  to  forbid 


276  THE   DECADENCE   OF 

such  inhumanity  to  the  innocent;  nor  is  it  now  rec- 
ognized in  any  American  State.  This  penalty  of 
beggary  to  the  deserted  family,  coupled,  until  the 
present  century,  with  the  refusal  of  decent  burial  to 
the  corpse,  was  the  sufficient  cause  for  the  adoption 
in  English  practice  of  the  legal  fiction  of  temporary 
insanity. 

The  censures  of  the  church,  too,  involving,  when 
Europe  was  under  Roman  Catholic  auspices,  the 
denial  of  its  rites  at  the  grave,  or  its  masses  for  the 
departed  soul,  tended  strongly  in  the  same  direction. 
So  did,  and  so  does,  the  natural  horror  and  disap- 
probation with  which  suicide  is  regarded  by  the 
majority  of  the  community. 

This  last  reason  for  calling  it  by  another  name  is 
the  only  one  that  remains  with  us,  —  the  only  one,  I 
say,  for  it  includes  the  censures  of  religion,  though 
not  of  popes  and  councils.  "Though  there  are 
many  crimes,"  says  Madame  de  Stael,  "  of  a  deeper 
dye  than  suicide,  there  is  no  other  by  which  men 
appear  so  formally  to  renounce  the  protection  of 
God." 

I  would  not  relieve  the  memory  of  the  suicide  from 
the  reproach  of  a  breach  of  religious  duty,  and  of 
social  obligation.  I  would  give  the  real,  and  not  the 
conventional  reason  for  his  act.  Poverty,  hopeless 
disease,  shame,  loss  of  friends,  loss  of  reputation, 
mere  weariness  of  an  empty  life ;  when  these  exist, 
why  shut  your  eyes  to  them  and  frame  a  fiction  to 
occupy  their  place?  In  very  charity  to  the  dead 
man's  kin,  let  the  truth  be  told,  rather  than  throw 
on  them  a  still  darker  shadow. 


THE  LEGAL  FICTION  277 

The  true  duty  of  the  coroner  in  such  a  case  is  to 
see  to  it  that  the  verdict  is  true.  Let  public  senti- 
ment require  him  to  instruct  the  jury  that  the  law  at 
least  does  not  presume  insanity  from  the  fact  of  sui- 
cide, and  that  they  should  not  find  that  to  be  the 
cause  of  death,  unless  satisfied  by  the  surrounding 
circumstances  that  it  really  was. 

But  the  worst  form  in  which  this  fiction  still  sur- 
vives is  that  in  which  it  serves  the  living  as  a  defence 
in  criminal  prosecutions.  Its  legitimate  use  for  this 
purpose  is  of  common  occurrence.  Its  illegitimate 
use,  I  believe,  is  still  commoner. 

A  class  of  crimes  exists  in  which  we  always  expect 
it;  in  which  it  is  seldom  well  founded;  in  which  it 
is  generally  successful.  They  are  crimes  in  the  eye 
of  the  law,  and  not  in  the  eye  of  the  community ; 
crimes  of  blood  and  crimes  of  deep  provocation. 
Human  honor  is  held  cheaper  in  law  than  it  is  in 
life.  It  is  held  cheaper  in  modern  law  than  it  was 
in  ancient  law.  It  is  held  cheaper  in  English  law 
than  it  is  in  Continental  law.  Honor  and  infamy,  — 
honor  as  the  great  prize  of  life,  infamy  as  its  heaviest 
burden,  —  these  were  great  agencies  of  the  legislator 
of  the  days  before  the  Christian  era. 

The  doctrine  that  no  words  can  justify  a  blow, 
that  the  mortal  stroke  that  punishes  an  insult  is 
murder,  but  that  violence  to  property  will  warrant 
violence  to  defend  it,  would  have  seemed  somewhat 
incongruous  to  a  Roman.  These  are  the  maxims  of 
a  pacific  people,  —  of  a  nation  at  which  Napoleon 
sneered  as  a  nation  of  shop-keepers,  though  he  found, 


278  THE   DECADENCE   OF 

at  last,  that  when  roused  they  could  fight,  and  could 
conquer.  They  are  maxims  also  which,  however 
just  in  theory,  do  not  regulate  the  actual  conduct 
in  life  of  Englishmen  or  Americans.  They  rest 
upon  the  plane  of  religion,  rather  than  of  ordinary 
human  intercourse.  Society  may  some  day  reach 
their  level,  but  it  has  not  yet. 

In  the  practice  of  courts,  they  are  softened  by  the 
sympathy  of  juries,  or  the  good  sense  of  the  bench. 

In  cases  of  simple  assault,  this  protection  has  been 
found  enough.  Where  the  punishment  of  fine  or 
imprisonment  is  in  the  discretion  of  the  judge,  he 
will  not  fail  to  make  due  allowance  for  the  man  who 
has  been  provoked  to  right  his  own  wrongs  in  a 
rough  way.  Even  revenge,  says  Lord  Bacon,  is  but 
a  wild  sort  of  justice. 

But  in  capital  cases,  we  are  brought  to  face  a  ques- 
tion quite  different.  Here  is  no  room  for  the  inflic- 
tion of  a  nominal  punishment.  The  verdict  binds 
the  court  to  an  invariable  sentence.  It  is  a  simple 
question  between  guilt  and  innocence;  between  the 
last  penalty  the  law  can  exact,  and  an  absolute  ac- 
quittal. It  is  this  narrow  alternative  from  which  the 
common  law  allows  no  escape,  which  has  driven 
the  English  and  American  jury  to  lay  hold  so  often 
of  the  pretence  of  emotional  insanity. 

A  hundred  and  sixty  different  capital  offences 
blackened  the  criminal  code  of  England,  so  late  as 
when  Blackstone  wrote.  The  ground  was  strewn 
with  dead  after  the  assizes,  as  it  is  behind  an  invad- 
ing army.  Parliament  refused  to  mitigate  the  laws. 
Lawyers  and  juries  were  found  ready  to  nullify  or 


THE  LEGAL  FICTION  279 

evade  them.  So  will  it  always  be  when  laws  cease  to 
represent  justice.  The  people  are  stronger  than  any 
statute.  They  may  be  long  misrepresented  by  their 
legislators,  but  they  will  not  be  long  thwarted  by  them. 
The  fiction  of  insanity  as  a  defence  in  homicide  had 
a  natural  origin  in  English  law.  It  was  the  protest  of 
the  community  against  rules  of  decision  which  failed 
to  recognize  some  of  the  finer  feelings  of  our  nature. 

Our  very  forms  of  legal  procedure  were  at  once  the 
occasion  and  the  opportunity  of  this  practice.  We 
are  unlike  almost  every  other  people  in  tying  our 
juries  down  to  single  issues.  To  this  result  we 
directed  our  art  of  pleading  in  civil  and  criminal  cases 
alike.  The  great  thing  was  to  give  the  jury  but  one 
point  to  settle,  —  one  question  to  answer.  It  is  now 
agreed  that  this  system  was  a  failure  in  civil  cases. 
It  became,  ages  ago,  one  of  simplicity  and  certainty 
in  theory  only.  Successive  relaxations  in  practice 
by  slow  growth  choked  the  clear  spirit  of  the  ancient 
science  of  pleading  till  it  became  a  corpse,  and  have 
driven  us  to  a  system  radically  different. 

But  in  our  criminal  procedure  we  still  cling  to  the 
forms  of  the  days  of  Alfred.  Guilty  or  Not  Guilty  — 
this  single  issue,  single  in  terms,  but  all  embracing 
in  scope  —  is  still  all  that  England  and  America  put  to 
their  juries  in  the  most  important  causes  with  which 
the  law  has  to  deal. 

The  Roman  panel,  before  which  the  State  brought 
its  prosecutions,  had  a  third  answer  open  to  it,  —  Non 
liquet,  I  am  not  certain.  The  Scotch  jury  too  can 
say,  Not  proven.  The  Continental  jury  can  do  more. 
They  can,  and  must,  if  they  fir*!  the  prisoner  guilty, 


280  THE   DECADENCE   OF 

return  written  answers  to  a  series  of  questions,  pro- 
posed by  the  prosecution  or  the  defence,  and  sanc- 
tioned by  the  court.1  These  questions  relate  to  facts 
evidencing  the  degree  of  criminality  involved  in  the 
commission  of  the  offence.  They  may  tend  to 
aggravate  it;  they  may  tend  to  extenuate  it. 
In  either  case,  they  are  to  be  passed  upon  separately 
and  on  due  consideration. 

By  the  present  laws  of  France,2  if  circumstances  of 
mitigation  are  found  in  a  capital  case,  the  court  may 
reduce  the  penalty  from  death  to  a  limited  term  of 
imprisonment.  In  the  Austrian  Code  of  1852,  we 
find  among  the  extenuating  facts  which  may  reduce 
the  punishment,  the  case  when  the  prisoner  was 
urged  on  to  the  act  complained  of  by  violent  mental 
excitement,  growing  out  of  the  ordinary  feelings  of 
man.  Temptation,  opportunity,  provocation,  contri- 
tion, all  these  things,  that,  to  the  common  judgment 
of  men,  give  color  to  an  act,  and  make  one  pity  or 
condemn,  these  penal  codes  bring  directly  before  the 
trier,  to  aid  in  ascertaining  as  to  the  prisoner's  guilt 
and  its  degree.  In  a  word,  all  the  matters  of  pallia- 
tion which,  under  the  prevailing  American  practice, 
have  been  brought  before  the  court,  only  after  ver- 
dict, to  mitigate  the  sentence,  and  shown  by  statements 
of  counsel,  letters  of  friends,  or  at  most  by  affidavit, 
other  nations  allow  to  be  proved  on  the  trial,  and 
placed  on  record  as  a  permanent  characterization 
of  the  offence,  —  as  a  necessary  part  of  determining 
what  that  offence  is  and  is  not. 

1  See  the  French  Code  cTInstruction  Criminelle,  Art.  336  et  seq. 

2  Law  of  May  13,  1863. 


THE  LEGAL  FICTION  281 

Under  such  a  system,  I  need  not  say  that  they 
are  ignorant  of  the  plea  of  temporary  insanity.  They 
have  no  need  to  bring  in  fictions  when  they  boldly 
accept  the  fact.  The  irresistible  impulse  that  leads 
an  outraged  husband  to  clear  his  house  of  the 
seducer  by  his  instant  death,  they  calmly  pronounce 
to  be  no  crime  at  all.1  The  transport  of  passion 
under  which  a  son  may  shoot  down  his  father's  mur- 
derer, though  met  years  after  the  deed  on  some 
distant  shore,  they  declare  to  be  a  legal  matter  of 
excuse. 

Who  is  there  that  has  not  watched  the  progress 
of  some  such  case  on  trial  in  an  American  court  as  it 
is  photographed  by  the  daily  press?  A  man  perhaps 
has  avenged  his  daughter's  or  his  sister's  wrongs. 
He  has  followed  the  wretch  who  destroyed  his 
happiness,  and  shot  him  down  as  he  would  a  wolf. 
The  sympathies  of  the  community,  of  the  audience, 
of  the  court,  are  with  the  prisoner.  He  has  offended 
against  the  law;  but  is  it  a  just  law?  It  imposes  on 
him  the  same  penalty  which  it  metes  out  to  the 
lowest  and  basest  criminal  that  defiles  the  dock.  It 
refuses  to  hear  the  story  of  the  injuries  that  drove 
him  to  revenge ;  or  if  it  hears  them  at  all,  treats  them 
as  proof  of  malice  and  premeditation.  The  jury 
must  find  him  simply  Guilty  or  Not  Gitilty.  The 
judge  is  the  mere  spokesman  of  the  statute  law. 
Some  punishment  the  prisoner  deserves,  but  he  must 
receive  the  most  severe,  or  none.  He  receives  none. 

1  "  Code  Penal "  of  France,  Art.  324.  By  English  law  it  is  man- 
slaughter ;  but  men  were  once  branded  on  the  hand  for  it,  by  burning. 
T.Raymond's  Reports,  212. 


282  THE   DECADENCE   OF 

The  tears  of  his  family,  the  eloquence  of  counsel,  the 
atmosphere  of  excitement  and  pity  that  pervades  the 
court-room  and  the  county,  supply  the  want  of  proof, 
and  the  man  who  was  sane  the  moment  before 
the  fatal  deed,  and  sane  the  moment  after  it,  is 
found  Not  Guilty,  on  the  ground  of  temporary  insan- 
ity. Twelve  men  have  violated  their  juror's  oaths ; 
but  they  have  done  it  to  save  a  life  which  the  law 
would  have  unjustly  forfeited. 

Which  is  better,  to  break  a  law  which  is  unjust, 
or  to  make  a  law  which  shall  be  capable  of  being 
respected?  We,  of  the  American  people,  have  it 
in  our  power  to  do  either.  Law  is  what  we  please. 
The  general  adoption  of  the  humane  principles  of 
foreign  codes,  as  to  motives  for  homicide,  would 
go  far  to  drive  the  fictitious  defence  of  temporary 
insanity  out  of  our  court-rooms.  Are  they  not 
more  in  accordance  with  the  instincts  of  the  human 
heart  than  those  which  we  have  inherited  from 
our  common  law?  Are  they  not,  on  the  whole,  safer 
for  society? 

It  was  the  great  thought  of  Stoic  philosophy  that 
all  things  were  ruled  by  law,  —  by  one  law,  every- 
where one  and  the  same.  Physical  science  in  our 
day  has  come  forward  with  new  and  commanding 
proofs  of  its  universality.  Let  it  be  the  language  of 
heaven,  or  let  it  be  the  mere  expression  of  material 
or  mortal  forces,  it  is  in  either  case  the  highest,  the 
ultimate  conception  of  the  human  mind.  To  apply 
this  law  to  the  affairs  of  men  is  justice,  and  those  to 
whom  it  is  committed  to  administer  this  sacred  trust 


THE  LEGAL  FICTION  283 

should  be  free  to  do  so  in  that  spirit  of  sincerity  and 
truth  which  its  nature  calls  for. 

The  cycles  and  epicycles  of  Ptolemy  might  serve 
to  indicate  the  laws  of  planetary  space,  till  the  eye  of 
Copernicus  pierced  to  the  very  heavens  and  saw  the 
truth.  Five  thousand  years  of  human  knowledge 
were  against  it,  but,  once  proved,  Science,  and  The- 
ology, as  well,  bowed  to  the  discovery,  and  the  earth 
shrank  away  into  a  corner  of  the  great  universe,  of 
which  her  inhabitants  had  so  long  thought  her  the 
centre  and  moving  cause.  A  surface  reading  of  holy 
writ  had  made  the  Christian  church  believe  that  our 
earth,  again,  was  but  the  six  days'  work  of  its  great 
Maker.  Geology  read  another  story  in  the  silent 
rocks,  —  dead  witnesses  of  other  times,  —  and  a  thou- 
sand centuries  were  added  to  the  pages  of  history. 
The  imperfections  of  human  laws  have  at  least  been 
as  great  as  the  imperfections  of  human  conceptions 
of  cosmogony  and  of  nature.  It  is  the  part  of  the 
modern  legislator  to  be  as  loyal  to  truth  as  is  the 
astronomer  or  the  geologist.  If  any  rule  of  right  or 
practice,  of  those  used  in  our  courts  of  justice,  comes 
to  be  recognized  as  false,  there  is  but  one  way  open, 
to  strike  it  out,  cost  what  it  may  of  old  traditions 
unseated  and  old  ways  abandoned. 

For  other  times,  for  the  rough  days  of  Saxon  kings 
and  Norman  conquerors,  of  Common  Law  struggling 
to  keep  out  Canon  Law,  of  peasant  juries  and  royal 
judges,  these  legal  fictions  that  linger  still,  may  have 
been  necessary.  But  they  were  ever  necessary  evils. 
One  language  alone  befits  the  court  of  justice  —  the 
language  of  truth.  If  the  surrounding  society  be  such 


284  THE   DECADENCE   OF 

that  the  truth  cannot  be  comprehended  or  acted  on, 
then  indeed  it  may  be  permissible  and  wise  to  veil 
and  disguise  it.  But  such  a  policy  can  be  only  a  tem- 
porizing one.  If  there  is  real  life  in  that  community, 
if  its  people  have  the  capability  of  better  things,  if  its 
rulers  are  leaders,  the  hour  will  soon  come  when 
justice  need  no  longer  wear  a  mask. 

Has  not  this  hour  come  to  the  American  law- 
maker, as  regards,  at  least,  this  pitiful  fiction  which 
we  have  had  under  particular  consideration?  Shall 
we  go  on  for  another  century  acquitting  the  husband 
who  kills  the  betrayer  of  his  household,  on  the  false 
plea  of  temporary  insanity,  instead  of  the  outspoken 
verdict  of  justifiable  homicide?  Shall  we  go  on  for 
another  century  listening  to  the  same  empty  lie  from 
every  coroner's  inquest  that  sits  on  the  body  of  a 
suicide?  Shall  we  go  on  for  another  century  setting 
aside  hard  wills  on  the  plea  of  testamentary  incapa- 
city, instead  of  protecting  heirs  by  law,  against  a 
father's  mere  caprice  or  injustice? 

We  cannot  say  that  our  people  are  too  ignorant  to 
be  trusted  with  the  truth  for  their  own  good.  It  is 
the  people  who  are  laughing  at  their  courts  and  law- 
yers for  an  ignorant  and  slavish  adherence  to  prece- 
dents of  former  and  ruder  generations.  America, 
that  has  taught  all  other  lands  the  duty  and  the 
blessings  of  popular  education,  need  not  distrust  the 
juries  whom  she  has  trained  up  in  her  own  free 
schools.  If  there  be  an  American  citizen  whom  any 
State  could  ever  put  in  her  jury-box,  too  blind  to  see 
through  these  legal  fictions  of  ancient  time,  that  State 
has  a  worse  enemy  to  contend  with  than  legal  fictions ; 


THE  LEGAL  FICTION  285 

she  must  be  the  victim  of  legal  facts,  —  of  bad  laws 
of  administrative  justice. 

It  is  with  a  just  pride  that  we  look  back  on  a 
thousand  years  of  Anglo-Saxon  life  —  its  sturdy 
growth,  its  glorious  expansion,  its  rugged  self- 
reliance.  Old  England  is  dear  to  us  still  as  our 
fatherland  :  — 

"  A  land  of  just  and  old  renown, 
A  land  of  settled  government, 
Where  freedom  broadens  slowly  down, 
From  precedent  to  precedent." 

But  precedents  may  mislead.  They  do  if  they  run 
counter  to  the  general  sentiment  of  an  educated  com- 
munity in  a  Christian  land.  In  matters  political  our 
race  has  never  allowed  legal  fictions  to  stand  long 
in  its  way.  The  oldest  of  all,  that  "  the  king  can 
do  no  wrong,"  was  invoked  in  vain  by  Charles  I.,  as 
he  stood  before  his  judges  at  Westminster ;  and  by 
George  III.,  when  he  undertook  to  tax  the  American 
Colonies. 

But  in  questions  of  mere  judicial  practice,  we  have 
been  ever  slow  to  depart  from  the  ancient  ways. 

No  fault  need  be  found  with  this  spirit  of  conserva- 
tism. It  has  given  us,  and  guaranteed  us,  the  free- 
dom we  enjoy.  No  new-made  law  can  have  half 
the  hold  upon  the  community,  can  exercise  half  the 
power  over  men,  which  belongs  of  right  to  settled 
rule  and  ancient  precedent.  We  have  grown  up 
with  and  into  this  notion  of  fictitious  insanity.  It 
is  part  of  our  criminal  jurisprudence,  and  probate 


286  THE   DECADENCE   OF 

law,  as  well  settled  and  familiar  as  any  other.  It 
ought  not  to  be  uprooted  without  strong  cause.  But 
is  it  not  true  that  strong  cause  exists?  All  these 
fictions  were  once  useful ;  we  can  see  where.  They 
are  now  outgrown;  we  can  see  how.  Often  they 
stand  in  the  way  of  a  manly  declaration  of  the  truth, 
in  matters  of  judicial  procedure,  and  they  alone  stand 
in  the  way  of  it. 

The  term  legal  fiction  has  been  sometimes  defined, 
and  was  by  D'Aguesseau,  so  as  to  exclude  whatever 
it  is  impossible  should  be  true.  The  ordinary  use 
of  the  term  is  more  extensive.  It  embraces  what 
is  obviously  untrue,  as  in  the  maxim  that  the  king 
never  dies,  or  that  a  will  speaks  from  the  death 
of  the  testator.  Thus  employed,  it  is  a  convenient 
figure  of  speech,  —  a  bit  of  picture  writing.  It  is  no 
more  than  a  correct  statement  in  proverbial  form 
of  a  legal  fact. 

Such  fictions  may  well  continue  a  part  of  any 
system  of  jurisprudence.  It  is  those  which  assert 
what  might  be  true,  but  is  known  not  to  be,  that 
are  falling  into  desuetude,  and  deserve  to  fall. 

Conservatism  is  the  peculiar  characteristic  of  the 
Anglo-Saxon  race  in  everything  that  belongs  to  law 
in  government.  But  there  may  be  a  conservatism 
of  forces,  without  a  conservatism  of  forms.  We  are 
the  heirs  of  strong  natural  traits,  tendencies,  aspira- 
tions. We  prize  the  results  they  have  attained  for 
English  law  and  English  liberty.  We  prize  more 
the  high  aim,  the  free  spirit,  the  loyal  soul,  of  which 


THE  LEGAL  FICTION  287 

these  results  have  been,  after  all,  but  an  imperfect 
expression. 

That  people  best  honors  its  great  progenitors 
that  stands  above  them,  on  a  higher  plane  of  life 
and  thought  and  law,  gained  by  following  out  their 
principles  of  action  in  a  better  way;  by  standing 
on  their  foundation;  not  to  stand  still,  but  to  step 
higher. 

The  statute  law  of  an  historic  race,  which  has  once 
attained  any  considerable  civilization,  should  be  a 
pyramid.  The  base  will  be  broad,  —  too  broad  for 
anything  except  a  base.  It  will  be  built  of  the 
customs  of  many  ages  crystallized  into  positive  law, 
lying  confusedly  together,  except  as  at  the  points  of 
greatest  advancement  they  may  face  the  structure 
with  what  rises  to  the  dignity  of  institutions.  Each 
higher  course  will  be  a  smaller  square,  because  from 
each  will  be  rejected  that  which  has  been  found 
unnecessary. 

The  best  statutes,  says  Mr.  Buckle,  are  those  that 
repeal  some  former  statute.  And  why?  Because 
under  and  around  every  system  of  legislation,  like 
the  free  air  of  the  desert  that  embraces  the  pyramids 
themselves,  is  the  great  sustaining  presence  of  that 
unwritten  law  which  every  people  makes  for  itself, 
and  changes  for  itself,  as  time  goes  on.  To  this  law 
they  are  remitted  by  the  repeal  of  statutes,  and  it 
is  a  law  seldom  other  than  equal  and  just 

What  says  this  unwritten  law,  as  to  the  succession 
to  the  estates  of  the  dead?  That  its  natural  course 
is  descent  to  the  next  of  kin.  What  says  the  statute 
law?  That  this  course  may  be  varied  at  the  pleasure 


288  THE   DECADENCE   OF 

of  the  dead,  if  they  leave  a  paper  which  we  call  their 
will.  Repeal  this  statute  and  you  remit  the  succes- 
sion to  the  rightful  heirs.  Repeal  it,  in  part,  as 
by  providing  that  they  cannot,  without  just  cause, 
be  wholly  disinherited,  and  you  remit  them,  for  that 
part,  to  the  protection  of  the  customary  law.  Is 
it  said  that  this  would  be  to  establish  a  restriction 
upon  the  power  of  bequest,  left  untrammelled  by  the 
wisdom  of  former  generations?  Who  have  the  op- 
portunity to  know  best  the  wants  of  the  present  age, 
they  or  we? 

In  Bacon's  Novum  Organum  are  some  words  in  re- 
gard to  the  wisdom  of  our  ancestors  which  are  as  true 
for  our  time  as  they  were  for  his.  Reverence  for  an- 
tiquity, he  says,  is  often  founded  on  a  mere  misappli- 
cation of  terms.  The  old  world  was  not  antiquity. 
That  was  a  younger  world  than  ours.  In  its  relation 
to  our  times,  it  was  old.  In  its  relation  to  all  times, 
it  was  young.  As  we  look  for  better  judgment  in  the 
man  of  experience  than  in  the  youth,  so  far  more  is 
to  be  expected  from  our  age  than  from  former  ones, 
for  it  has  had  greater  opportunities  of  knowledge.1 

1  Lib.  i.  Ixxxiv.  37 :  "  De  antiquitate  autem  opinio,  quant  homines 
de  ipsa  fovent,  negligens  ontnino  est,  et  vix  verbo  ipsi  congrua. 
Mundi  enim  senium  et  grandczvitas  pro  antiquitate  vere  habenda  sunt ; 
qua  temporibus  nostris  tribui  debent,  non  junior  i  cetati  mundi,  qualis 
apud  antiques  fuit.  Ilia  enim  cetas,  respectu  nostri,  antiqua  et  major  ; 
respectu  mundi  ipsius,  nova  et  minor  fuit,  Atque  revera  quemadmodtim 
majorem  rerum  humanarum  notitiam,  et  maturius  judiciurn,  ab  homing 
sene  expectamus,  quam  a  juvene,  propter  experientiam,  et  rerum,  quas 
vidit,  et  audivit,  et  cogitavit,  varietatem  et  copiam  ;  eodem  modo  et  a  nos- 
tra  (state  (si  vires  suas  nosset,  et  experiri  et  intendere  vellet]  major  a 
multo  quam,  a  priscis  temporibus,  expectari  par  est ;  utpotc  atate  mundi 
grandiore,  et  infinites  experiment  is  et  observationibus  aucta,  et  cumulata" 


THE  LEGAL  FICTION  289 

The  nineteenth  century  closes  as  an  age  of  light, 
of  truth,  of  sincere  investigation,  of  candid  judgment. 
It  is  intolerant  of  shams.  It  needs  none.  Least  of 
all  does  it  want  them  in  its  courts  of  justice.  Surely, 
before  that  high  presence,  where  we  poor  mortals  in- 
voke the  aid  of  the  God  above  us  to  keep  our  testi- 
mony pure,  our  judgments  right,  we  may  say  with 
George  Herbert  — 

"  Dare  to  be  true  :  nothing  can  need  a  lie." 


CHAPTER   IX 

THE    RECOGNITION    OF    HABITUAL    CRIMINALS    AS   A 
CLASS   TO   BE  TREATED   BY  ITSELF1 

THE  last  quarter  of  the  nineteenth  century  has 
witnessed  the  development  of  a  new  science,  — 
that  of  Criminal  Anthropology.  It  deals  especially 
with  the  relation  of  crime  to  the  criminal,  and  seeks 
to  discover  what  were  the  causes  which  have  made 
him  what  he  is,  and  what  regard  society  should  pay 
to  those  causes  in  determining  what  to  do  with  him. 
Since  the  publication  of  Professor  Lombroso's  Luomo 
delinquente,  in  1876,  a  considerable  literature  regard- 
ing this  subject  has  come  into  existence,  and  one  to 
which  there  have  been  contributions  in  many  lan- 
guages. The  fundamental  proposition  which  he  has 
brought  forward  is  that  he  who  commits  a  crime 
commits  it  in  consequence  of  a  peculiar  constitution 
of  mind  and  body,  acted  upon  by  his  physical  and 
social  surroundings.  This  seems  almost  a  common- 
place, but  there  are  many  anthropologists  who  con- 
tend that  the  environment  is  the  sole  responsible 
cause,  and  others  by  whom  peculiarities  of  bodily 
conformation,  race  instinct,  or  climatic  conditions  are 
denied  to  have  any  determining  influence  at  all. 

1  In  discussing  this  topic  use  has  been  made  of  a  paper  read  by  the 
author  before  the  American  Social  Science  Association,  in  1886. 


HABITUAL   CRIMINALS  291 

Fortunately  for  Lombroso,  his  views  were  soon  re- 
inforced by  proofs  of  a  convincing  character.  In 
1 88 1,  Alphonse  Bertillon  made  public  his  new  method 
of  personal  identification. 

There  are  practically  no  changes  of  dimension  in 
the  bones  or  ears  of  the  human  body  after  it  once 
attains  its  full  stature.  In  no  two  skeletons  do  the 
bones  have  precisely  the  same  relative  dimensions  to 
each  other.  These  relative  variations  are  particularly 
noticeable  in  the  length  and  width  of  the  skull,  the 
length  of  the  middle  and  little  fingers,  foot  and  fore- 
arm, and  the  stretch  of  the  arms  as  compared  with 
the  height. 

Bertillon  asserted  that  if  these  and  certain  other 
dimensions  were  accurately  taken  in  the  case  of  any 
individual,  and  supplemented  by  photographs,  a  sci- 
entific analysis  and  description  of  the  features  of  the 
face  and  an  anatomical  localization  of  all  permanent 
scars,  marks,  or  bodily  deformities,  he  could  be  identi- 
fied with  certainty  after  any  lapse  of  years  or  change 
of  circumstances.  While  serviceable  for  many  pur- 
poses, it  is  obvious  that  the  principal  utility  of  this 
method  of  "  anthropometric  identification,"  as  it  is 
termed,  must  be  in  its  application  to  those  arrested 
on  a  criminal  charge.  The  system  was  put  into  use  at 
Paris  by  the  prefecture  of  police,  in  1882,  and  soon 
spread  over  France,  Belgium,  Switzerland,  and  Russia. 
More  recently  it  has  been  introduced  into  the  English 
prisons. 

At  the  Columbian  Exposition  at  Chicago  in  1893, 
the  French  exhibits,  by  which  it  was  illustrated,  went 
far  towards  convincing  the  American  public  that 


292     RECOGNITION    OF   HABITUAL   CRIMINALS 

Criminal  Anthropology  had  fairly  gained  the  rank  of 
a  science. 

It  was  the  least  of  the  lessons  taught  by  an  exami- 
nation of  the  photographs  and  files  of  measurements 
and  descriptions,  that  escaping  criminals,  if  they  had 
been  once  convicted  in  any  court  or  country  could  be 
infallibly  identified,  if  arrested  in  another.  They  es- 
tablished the  existence  of  a  class  of  men,  of  peculiar 
physical  characteristics,  and  facial  expression,  the 
members  of  which  seemed  formed  to  gravitate  to- 
wards crime.  In  the  contour  of  the  skull  and  the 
great  reach  of  the  outstretched  arms  as  compared 
with  the  height,  many  of  them  bore  a  striking  resem- 
blance to  the  ape  or  "  simian  "  family,  out  of  which 
it  may  be  that  man  originally  emerged.  In  most 
there  was  a  want  of  symmetry  and  due  proportion  as  to 
the  features  of  the  face,  as  well  as  the  larger  members 
of  the  body.  Those  in  whom  these  abnormal  char- 
acteristics were  most  marked  generally  had  the  worst 
record.1  They  were  the  old  offenders  or  "  recidi- 
vists." They  constituted  a  class  within  a  class,  —  that 
of  the  habitual  criminals.  If  one  coming  into  the 
world  fashioned  in  such  a  shape,  unless  he  be  reared 
and  educated  with  exceptional  care  and  success,  be 
placed  in  circumstances  of  want,  an  opportunity  to 
satisfy  it  at  the  expense  of  another,  will  not  go 
unimproved. 

The  philosophy  of  Lombroso,  and  the  invention 

1  A  French  physician,  as  early  as  1841,  had  called  attention  to 
many  of  these  facts,  as  disclosed  by  a  study  of  the  convicts  in  the  gal- 
leys at  Toulon.  Lauvergne,  on  Les  Forfats,  considered  sous  le  Rap- 
port physiologique,  moral,  et  intellectual,  pp.  43,  199,  279. 


AS  A   CLASS  TO   BE   TREATED   BY   ITSELF     293 

of  Bertillon,  came  in  good  time  to  serve  the  interests 
of  American  society.  Crime  with  us  has  become  of 
late  years  to  assume  a  new  aspect.  Our  population 
has  begun  in  more  than  one  State  to  press  upon  the 
limits  of  subsistence.  It  is  less  easy  than  it  once  was 
for  every  man  to  find  work  at  wages  which  satisfy 
his  wants.  It  is  more  easy  than  it  once  was  to  gain 
a  living  by  burglary  and  theft,  roguery  and  fraud.  It 
is  more  easy  for  the  successful  sharper,  robber,  or 
counterfeiter  to  find  a  way  to  spend  his  ill-gotten 
gains  without  attracting  any  more  attention  than  he 
desires  to  their  possession.  Such  men  have  come 
to  have  a  social  circle  of  their  own ;  a  certain  pride 
in  their  profession;  a  following  of  respectful  ad- 
mirers ;  a  Police  Gazette  literature  to  proclaim  their 
exploits  and  perpetuate  their  kind. 

We  have  been  slow  to  recognize  the  existence  of 
this  class  among  us,  and  we  have  been  slower  in 
applying  the  remedy.  But  as  no  considerable  city 
is  now  without  them,  and  no  village  bank  or  store  is 
secure  against  its  forays,  it  is  full  time  for  every  State 
to  do  what  but  a  few  thus  far  have  done,  and  settle 
on  some  general  plan  of  dealing  with  criminals  of 
this  description. 

They  are  mainly  the  offspring  of  city  life;  their 
crimes  are  directed  against  property;  their  line  of 
action  is  craft  rather  than  violence,  —  violence  only 
when  craft  fails. 

Cities  are  transforming  American  society.  They 
crowd  the  good  and  the  bad  of  vast  districts  into  a 
single  centre,  where,  if  the  good  become  better,  the 
bad  become  worse.  We  are  repeating  the  history  of 


294     RECOGNITION   OF   HABITUAL   CRIMINALS 

ancient  times  and  of  the  dark  ages,  though  from  a 
different  cause.  Not  now  for  safety,  but  for  pleasure 
and  for  gain,  our  people  are  deserting  the  country 
hill-sides  for  the  manufacturing  village  or  the  more 
distant  city.  Political  influence,  industrial  enterprise, 
capital  accumulated  elsewhere,  go  with  them.  If  you 
would  find  the  daring,  venturesome,  restless,  ambi- 
tious spirits,  such  as  were  first  in  earlier  days  in 
pushing  on  the  frontiers  of  civilization,  you  look  for 
them  on  pavements  rather  than  on  farms.  They  go 
where  there  is  not  honest  work  enough  for  all,  and 
so  some  take  to  what  is  dishonest.  They  take  to  it 
with  the  energy  and  skill  that  belong  to  the  Amer- 
ican character,  with  the  intensity  of  purpose  that 
marks  the  struggle  of  city  life.  It  is  thus  that  crime, 
if  it  fastens  on  some  man  who  is  ready  to  receive  it, 
becomes  a  profession  ;  that  children  are  bred  to  it ; 
that  it  has  its  own  language,  —  its  own  tools. 

In  every  country  where  modern  institutions  pre- 
vail, the  same  movement  is  to  be  seen.  The  great 
cities  of  England  and  Germany  have  been  becoming 
greater  during  the  last  thirty  years,  with  almost,  if 
not  quite,  the  rapidity  of  Chicago  and  New  York. 

And  with  what  weapons  has  American  society 
been  opposing  these  new  criminal  classes?  With 
none  but  those  forged  in  the  early  days  of  English 
history,  —  in  the  days  of  another  type  of  civilization. 
She  has,  to  meet  the  Springfield  rifle  and  the  Gat- 
ling  gun,  nothing  still  but  the  old  pike  and  shield  of 
the  middle  ages.  She  has  even  less.  The  humanity 
of  our  times  has  given  the  man  accused  of  crime 
rights  of  defence  undreamt  of  by  the  common  law, 
and  has  thrown  aside  half  its  punishments. 


AS  A   CLASS  TO   BE   TREATED   BY   ITSELF     295 

The  laws  of  England  regulating  criminal  proceed- 
ings, which  we  have  inherited,  were  good  for  the 
times  and  the  men  whose  work  they  were.  In  a 
land  of  headstrong  kings  and  feudal  lords,  the  com- 
mon people  had  scant  justice  at  the  best.  They 
needed  all  the  guarantees  of  personal  liberty  which 
they  could  get.  There  was  often  little  guilt  in  acts 
for  which  capital  punishment  was  imposed  by  Act 
of  Parliament.  Crime  was  not  without  its  romantic 
side.  There  might  be  a  certain  dash  of  chivalry  in 
the  freebooter  of  the  Border,  or  a  Robin  Hood  of 
the  Great  Forest  We  shall  find  none  in  the  city 
burglar  of  the  nineteenth  or  the  twentieth  century. 

The  professional  criminal  of  modern  times  is  a 
product  of  a  highly  civilized  society.  He  is  armed 
with  its  arts.  He  must  be  met  with  the  best  means 
it  has  at  its  command.  He  hides  himself  in  the 
crowds  of  great  cities  from  the  neighborhood  watch 
which  follows  every  individual  in  a  thinly  settled 
community,  —  which  kept  England  safe  in  the  days 
when  every  Hundred  was  responsible  for  its  own 
good  order.  Society,  then,  must  set  a  watch  over 
him  of  some  new  kind ;  if  there  is  likely  to  be  none 
without  law,  there  must  be  one  by  law.  The  habitual 
criminal  is  a  perpetual  well-spring  of  crime.  The 
stream  must  be  checked  at  its  source,  if  it  is  to  be 
checked  at  all. 

It  may  be  necessary  to  treat  him  in  a  manner  in- 
compatible with  the  traditions  of  our  race.  We  may 
be  forced  to  trench  upon  his  personal  independence. 
The  time  may  come,  even,  for  us  to  make  suspicion 


296     RECOGNITION   OF   HABITUAL   CRIMINALS 

evidence,  and  assume  guilt  where  we  cannot  prove  it. 
If  so,  the  price  is  a  great  one,  but  the  peace  of  society 
is  worth  it. 

It  is  a  rule  of  biology,  to  which  I  had  occasion  to 
refer  in  a  previous  chapter,  that,  in  the  natural  order 
of  the  universe,  a  being  disappears  who  cannot  live  in 
unison  with  his  surroundings.  The  habitual  criminal 
is  such  a  being.  He  is  habitually  inclined  to  do  and 
apt  to  do  that  which  is  forbidden  by  the  general  voice 
and  sentiment  of  the  political  community  in  which 
he  resides.  He  does  not  belong  where  he  is  found. 

A  sharp  and  efficient  remedy  was  applied  in  ruder 
times.  His  first  crime  was  apt  to  be  his  last.  Before 
he  had  had  time  to  harden  into  a  criminal  by  trade, 
he  was  summarily  put  out  of  harm's  way  forever,  by 
private  vengeance  or  public  execution;  or  disabled 
from  future  mischief  by  bodily  mutilation,  or  else 
made  to  carry  always  a  warning  of  what  he  was  by 
marking  him  with  some  ineffaceable  sign  of  igno- 
miny. 

The  softening  influences  of  Christian  civilization 
have  taught  us  to  discard  most  of  the  penalties  which 
criminal  justice  formerly  imposed.  The  whipping- 
post, whether  wisely  or  unwisely,  has  almost  every- 
where been  abandoned,1  and  except  for  a  steadily 
diminishing  number  of  crimes  called  capital,  the  only 
sentences  left  to  be  imposed  are  those  of  fine  or  of 
imprisonment. 

A  fine  is  a  slight  penalty  to  the  habitual  criminal. 

1  A  French  convict,  quoted  by  Lauvergne  (Les  Formats,  etc. 
216),  when  sentenced  to  fifty  lashes  said :  "  Mais  c'est  plus  doulou- 
reux que  cinquante  coups  de  guillotine ;  on  souffre  pendant  et  apres." 


AS   A   CLASS  TO   BE   TREATED   BY   ITSELF     297 

If  he  can  pay  it,  he  at  once  returns  to  the  society 
where  he  is  out  of  place ;  if  he  is  too  poor  for  that, 
it  is  at  most  but  equivalent  to  a  term  in  jail. 

The  subject  is  one  which  was  not  overlooked  by 
our  first  great  American  writer  on  systematic  crim- 
inal procedure,  Edward  Livingston.  In  his  "  Code 
of  Crimes  and  Punishments,"  reported  to  the  legis- 
lature of  Louisiana  in  1824,  we  find  a  provision  for 
an  increased  punishment  in  all  cases  on  a  second 
conviction,  followed  by  this  article :  — 

"Art.  53.  And  if  any  person,  having  been  twice  pre- 
viously convicted  of  crimes,  no  matter  of  what  nature,  shall 
a  third  time  be  convicted  of  any  crime  afterwards  committed, 
he  shall  be  considered  as  unfit  for  society,  and  be  impris- 
oned at  hard  labor  for  life." 

Mr.  Livingston  was  almost  a  sentimentalist  in  his 
views  of  penology.  He  would  have  abolished  cap- 
ital punishment,  and  the  foundation-stone  of  his  whole 
system  is  the  proposition  that  "  the  sole  object  of 
punishment  is  to  prevent  the  commission  of  crime." 
In  the  Reports  accompanying  his  code  he  argued  at 
length  all  points  that  seemed  to  him  worthy  of  dis- 
cussion, yet  his  only  allusion  to  the  life-sentence  for 
the  habitual  criminal  is  the  remark  that  it  "  seems  so 
necessary  and  reasonable  that  it  may  pass  without 
observation." 

So  far  as  I  am  aware,  Virginia  was  the  first  of  our 
States  to  adopt  the  plan  thus  proposed.  In  her  code, 
framed  shortly  before  the  Civil  War,  she  declared  that 
every  person  sentenced  to  the  penitentiary  must  be 


298     RECOGNITION   OF   HABITUAL   CRIMINALS 

sentenced  for  life,  if  he  had  before  been  twice  sen- 
tenced to  the  penitentiary  by  any  court  held  within 
the  United  States.1 

In  Maine  a  similar  punishment  may  be  imposed  for 
a  second  conviction.  The  provision  is,  that  any  per- 
son convicted  of  a  State's  prison  offence,  who  has 
been  previously  sentenced  to  the  State's  prison  by 
any  court  of  the  United  States,  or  any  State,  may  be 
imprisoned  for  life  or  any  term  of  years.2  It  will  be 
observed  that  this  statute  is  permissive ;  not,  like  the 
others,  mandatory.  The  court  may,  but  is  not  bound 
to  inflict  the  life-sentence.  And,  on  the  other  hand, 
Maine  requires  but  two  convictions  to  justify  this 
remedy,  while  Livingston's  code  and  that  of  Virginia 
demand  three. 

In  1885,  Ohio  followed  the  lead  of  Virginia,  but 
tempered  the  sentence  by  giving  a  chance  of  regain- 
ing a  qualified  liberty.  Her  statute  reads  thus :  - 

"  Every  person  who,  after  having  been  twice  convicted, 
sentenced  and  imprisoned  in  some  penal  institution  for 
felony,  whether  committed  heretofore  or  hereafter,  and 
whether  committed  in  this  State  or  elsewhere  within  the 
limits  of  the  United  States  of  America,  shall  be  convicted, 
sentenced,  and  imprisoned  in  the  Ohio  penitentiary  for 
felony,  hereafter  committed,  shall  be  deemed  and  taken  to 
be  an  habitual  criminal,  and  on  the  expiration  of  the  term 
for  which  he  shall  be  so  sentenced,  he  shall  not  be  dis- 
charged from  imprisonment  in  the  penitentiary,  but  shall  be 
detained  therein,  for  and  during  his  natural  life,  unless  par- 
doned by  the  Governor,  and  the  liability  to  be  so  detained 

1  Virginia  Code  of  1860,  p.  814,  sec.  26. 

2  Maine  Revised  Statutes  of  1871,  p.  891,  sec.  3. 


AS  A   CLASS  TO   BE   TREATED   BY   ITSELF     299 

shall  be  and  constitute  a  part  of  every  sentence  to  imprison- 
ment in  the  penitentiary ;  provided,  however,  that  after  the 
expiration  of  the  term  for  which  he  was  so  sentenced,  he 
may,  in  the  discretion  of  the  board  of  managers,  be  allowed 
to  go  upon  parole  outside  of  the  buildings  and  enclosures, 
but  to  remain,  while  on  parole,  in  the  legal  custody  and 
under  the  control  of  said  board,  and  subject  at  any  time  to 
be  taken  back  within  the  inclosure  of  said  institution ;  and 
the  power  is  hereby  conferred  upon  said  board  to  establish 
rules  and  regulations,  under  which  such  habitual  criminals 
who  are  prisoners  may  so  go  out  upon  parole,  and  full 
power  to  enforce  such  rules  and  regulations,  and  to  retake 
and  re-imprison  any  such  convict  so  going  out  on  parole, 
is  hereby  conferred  upon  said  board,  whose  written  order, 
certified  by  its  secretary,  shall  be  sufficient  warrant  to  author- 
ize any  police  officer  to  return  to  actual  custody  any  such 
conditionally  released  or  paroled  prisoner."  1 

We  observe  here,  as  an  alternative  of  the  life- 
sentence,  or  rather  as  a  provisional  and  temporary 
substitute  for  it,  something  like  the  English  ticket-of- 
leave  system.  The  board  of  managers  of  the  peni- 
tentiary have  the  powers  which  the  Act  of  16  &  17 
Viet.  ch.  99,  sections  9-11,  gave  in  1853  to  the  State 
Department.  The  convict  may  be  put  under  watch 
outside  the  prison,  instead  of  within  it,  —  under  the 
watch  of  the  police,  instead  of  the  jailer.  This  is  a 
necessary  incident  of  the  power  to  establish  rules  for 
his  control,  after  his  provisional  liberation. 

In  1882,  the  American  Bar  Association  instructed  its 
committee  on  jurisprudence  and  law  reform  to  "  re- 

1  Ohio  Session  Laws  for  1885,  p.  237,  sec.  2. 


300     RECOGNITION   OF   HABITUAL   CRIMINALS 

port  a  proper  method  and  criterion,  for  discriminat- 
ing between  professional  and  non-professional  crimi- 
nals, and  for  the  protection  of  society  against  the 
former,  when  so  ascertained."  Such  a  report  was 
presented  to  the  Association  in  1885,  and  the  follow- 
ing resolutions  recommended  for  adoption:  — 

"  i .  Resolved,  That  provision  should  be  made  by  law  in 
every  State,  for  keeping  a  record  of  the  name,  age,  personal 
appearance,  residence,  occupation,  and  general  antecedents 
of  every  person  who  may  be  convicted  in  its  courts  of 
felony,  or  who  may  have  been  twice  sentenced  to  imprison- 
ment for  any  crime  or  misdemeanor ;  and  for  printing  such 
records  annually,  for  distribution  to  its  courts  and  police 
authorities,  and  for  exchange  for  similar  publications  of 
other  States ;  and  that  photographs  of  convicts  deemed 
specially  dangerous  should  also  be  taken,  to  be  used  in  a 
similar  manner. 

"  2.  Resolved,  That  provision  should  be  made  by  law  in 
every  State,  for  subjecting  all  persons  who  have  been  twice 
sentenced  to  imprisonment  for  any  crime  or  misdemeanor, 
to  police  supervision  for  life,  or  such  shorter  term,  not  less 
than  five  years  after  the  expiration  of  their  second  term  of 
imprisonment,  as  the  court  may  order;  and  also  to  per- 
petual deprivation  of  the  right  to  vote  or  hold  public 
office." 

This  report  was  the  subject  of  full  discussion,  and 
at  the  succeeding  annual  meeting,  in  1886,  the  reso- 
lutions were  adopted.  Since  then,  legislation  similar 
in  many  respects  to  that  of  Ohio  has  been  had  in 
Massachusetts,  Connecticut,  Rhode  Island,  and  Utah, 
and  the  Bertillon  system  has  been  adopted  by  the 


AS  A   CLASS  TO   BE   TREATED   BY  ITSELF     301 

police  authorities  in  Illinois,  Michigan,  Wisconsin, 
Massachusetts,  Rhode  Island,  and  New  York  city. 
In  some  of  the  States  mentioned  Livingston's  rule  is 
followed,  and  a  third  conviction  of  felony  deemed 
absolute  proof  that  the  offender  is  incorrigible,  his 
sentence  being  to  confinement  for  life,  with  no  hope 
of  release  on  parole,  however  he  may  subsequently 
seem  to  have  become  reformed.1 

These  statutes  and  the  course  of  legislation  recom- 
mended by  the  American  Bar  Association  both  rest 
on  the  assumption  that  habitual  criminals  are  an  espe- 
cially dangerous  class,  against  which  it  is  proper  to 
guard  by  unusual  laws.  They  agree,  also,  in  making 
repeated  convictions  the  criterion  for  determining  the 
members  of  this  class.  The  plan  of  the  Bar  Associa- 
tion differs  from  that  of  most  of  the  statutes  in  impos- 
ing a  liability  to  police  supervision  after  a  second 
sentence  to  imprisonment,  even  for  simple  misde- 
meanors, has  been  served  out.  It  also  differs  in 
emphasizing  the  necessity  of  instituting  in  every 
State  an  exact  system  of  registration  for  convicted 
criminals,  to  be  made  useful  throughout  the  coun- 
try, by  suitable  arrangements  for  exchange  of 
information. 

This  first  became  possible  through  the  invention  of 
Bertillon. 

The  line  of  policy  upon  which  a  few  of  the  States 
have  thus  tentatively  entered,  and  which  has  the 
support  of  the  only  body  which  assumes  to  represent 
the  lawyers  of  the  country,  is  not  a  novel  one.  It 

1  Connecticut,  after  first  extending  the  benefit  of  the  parole  to  this 
class  (Gen.  Stat.,  §  1644),  withdrew  it  in  1897. 


302     RECOGNITION   OF   HABITUAL   CRIMINALS 

applies  to  habitual  criminals  rules  which  the  leading 
nations  of  the  world  have  long  applied  not  only  to 
them,  but  to  those  generally  who  have  committed 
grave,  though  single  crimes. 

It  may  be  said  that  its  spirit  is  un-American.  It  is. 
During  most  of  our  history  we  were  content,  when 
a  convict's  term  of  imprisonment  ended  and  we  saw 
him  pass  out  of  the  jail  door,  to  say  with  Dogberry, 
"  Thank  God,  we  are  well  rid  of  the  knave."  But 
we  found,  as  our  prisons  improved,  and  the  stocks 
and  the  whipping-post  disappeared,  that  he  generally 
came  back.  Then  Prisoners'  Aid  Societies  were  tried, 
which  are  really  a  form  of  supervision  by  the  execu- 
tive agent  of  a  charitable  organization,  though  with 
the  immediate  design  of  supplying  good  influences 
and  help  to  find  work,  rather  than  of  watching 
against  new  crime.  The  State,  in  some  instances, 
has  contributed  to  the  support  of  these  organiza- 
tions, and  their  supervision  has  then  become,  in 
a  measure,  that  of  a  public  officer,  but  in  a  measure 
only. 

We  have  tried,  too,  Lynch-law,  very  vigorously. 
It  is  effectual  against  horse-thieves  and  stage-robbers 
in  new  States.  It  is  a  thoroughly  American  remedy. 
It  aims,  in  a  rough  way,  at  the  same  end  that  Eng- 
land aimed  at  by  law  when  our  ancestors  left  it,  — 
the  extermination  by  death  of  the  flagrant  criminal, 
before  he  has  an  opportunity  to  become  an  habitual 
one.  But  its  existence,  even  in  the  South,  where  the 
conditions  of  society,  so  exceptional  as  respects 
temptation  and  opportunity  for  one  crime,  would 
excuse  it,  if  anywhere,  is  a  national  disgrace. 


AS  A   CLASS   TO   BE   TREATED   BY   ITSELF     303 

We  cannot  return  to  the  severity  of  our  early  codes. 
We  cannot  tolerate  the  swift  vengeance  that  antici- 
pates the  law  or  goes  beyond  it.  Those  who  have 
studied  the  course  of  Prisoners'  Aid  Societies  know 
how  little  they  can  do  to  make  honest  men  of  rogues. 
Their  watch  over  the  discharged  convict  who  ac- 
cepts their  good  offices  is  of  value,  so  far  as  it  goes, 
but  it  cannot  go  as  far  as  if  maintained  or  seconded, 
as  in  European  fashion,  by  the  police. 

The  Penal  Code1  of  France  put  every  convict 
sentenced  to  imprisonment  at  hard  labor,  or  for 
long  terms,  under  police  supervision  for  life.  Before 
his  discharge  he  had  to  declare  where  he  wished 
to  reside.  The  government  might  grant  his  wish, 
or  might  refuse  it,  in  which  case  he  must  select 
another  place  for  its  approbation.  He  received 
a  sort  of  passport  to  the  place  appointed,  specifying 
how  long  he  might  take  for  the  journey,  and  what 
stops  he  might  make  on  the  way.  Within  twenty- 
four  hours  from  his  arrival  he  had  to  report  to  the 
mayor  of  the  place,  and  he  could  not  leave  it  with- 
out a  new  passport,  after  three  days'  notice.  Five 
years'  imprisonment  might  be  the  punishment  of 
any  infraction  of  these  rules.  Those  twice  convicted 
of  petty  offences  might  be  put  under  similar  super- 
vision for  from  five  to  ten  years.  In  1885  2  there 
was  substituted  for  these  provisions  a  system  of  trans- 
portation for  all  habitual  criminals. 

The  general  registration  law  of  France,  also,  as- 
signs every  man  a  legal  domicile,  which  he  can 
only  change  by  a  formal  notification  to  the  public 

1  Art.  ii,  44  et  seq.  2  Law  of  May  27. 


304     RECOGNITION   OF   HABITUAL   CRIMINALS 

authorities,  and  where  the  main  events  of  his  life  are 
recorded. 

In  England,1  on  a  second  conviction  of  one  pre- 
viously sentenced  to  imprisonment  for  the  same 
offence,  the  criminal  may  be  put  under  police  super- 
vision for  seven  years,  after  the  expiration  of  his 
second  term.  And  though  not  sentenced  to  such 
supervision,  yet  if  within  seven  years  after  his  second 
term,  any  proper  court  finds  reasonable  grounds  for 
believing  that  he  is  getting  his  living  by  dishonest 
means,  or  "  if  he  is  found  in  any  place,  whether 
public  or  private,  under  such  circumstances  as  to 
satisfy  the  Court  that  he  was  about  to  commit,  or 
aid  in  the  commission  of,  any  offence  punishable 
on  indictment  or  summary  conviction ;  "  or  if  he 
be  found  in  any  house,  shop,  or  yard,  "  without 
being  able  to  account  to  the  satisfaction  of  the  Court, 
before  whom  he  is  brought,  for  his  being  found  on 
said  premises,"  he  may  be  sentenced,  without  further 
evidence,  to  a  year's  imprisonment. 

This  system  of  police  supervision  obviously  cannot 
be  made  fully  effective  here,  without  exacter  methods 
than  we  have  yet  pursued  for  the  registration  and 
description  of  known  criminals.  The  photograph 
gives  a  cheap  and  easy,  though  far  from  certain,  way 
of  identifying  them,  and  it  has  come  into  general 
use  in  the  police  offices  of  our  larger  cities,  without 
any  authority  of  law.  A  "  rogues'  gallery"  of  photo- 
graphic portraits  ought  to  be  found  in  every  State 
prison,  and  a  sufficient  number  of  each  likeness 
1  By  Act  of  1871  (34  &  35  Viet,  ch.  112). 


AS  A   CLASS   TO   BE   TREATED   BY   ITSELF     305 

should  be  printed,  in  case  of  habitual  criminals,  to 
distribute  in  all  the  great  centres  of  population  in 
the  United  States.  England,  in  1876  (39  &  40 
Viet.,  ch.  23),  formally  adopted  this  policy.  The 
State  department  is  to  fix  from  time  to  time  the 
classes  of  convicts  to  which  it  shall  apply,  and  each 
member  of  every  such  class  shall  be  photographed 
in  any  style  of  dress  the  authorities  may  prescribe. 
A  record  is  also  to  be  made  of  his  name,  age,  personal 
description,  offence,  occupation,  residence,  etc.,  and 
the  information  thus  gained  is  tabulated,  and  regis- 
tered in  London  for  English,  in  Edinburgh  for 
Scotch,  and  in  Dublin  for  Irish  convicts.  The  result 
has  been  that  while  at  the  date  of  the  adoption 
of  this  system  the  average  number  confined  in  British 
prisons  every  day  in  the  year  was  over  twenty  thou- 
sand, it  fell  to  less  than  thirteen  thousand  four 
hundred  in  1893,  and  it  is  generally  agreed  that 
there  has  been  a  reduction  of  crime  to  the  ex- 
tent of  twenty-five  per  cent  during  this  period, 
without  counting  the  very  considerable  increase  of 
population.1 

If  similar  records  were  kept  in  each  of  our  States, 
and  printed  for  exchange  with  other  States,  as  well  as 
for  use  by  its  own  local  authorities,  a  long  step  would 
be  taken  towards  suppressing  the  habitual  criminal, 
who  now  finds  it  easy  to  flit,  under  an  alias,  beyond 
the  shadow  of  his  local  reputation,  without  going 
farther  than  the  State  line.  Massachusetts  has  made 
provision  for  gathering  information  of  this  general 

1  Report  of  the  United  States  Delegates  to  the  Fifth  International 
Prison  Congress,  91. 


306     RECOGNITION    OF   HABITUAL   CRIMINALS 

character,  as  part  of  her  "  probation  officer"  system 
in  regard  to  all  persons  arrested  for  every  offence; 
but  it  is  not  gathered  for  dissemination  and  has  no 
relation  to  the  mischief  now  under  consideration.  It 
looks  to  probation  in  lieu  of  imprisonment,  not  after 
and  in  addition  to  it. 

It  is  my  belief  that  the  best  way  to  deal  with  the 
habitual  criminal  lies  in  the  direction  suggested  by 
the  American  Bar  Association.  Let  there  be  a  full 
record  kept  under  the  Bertillon  system  of  the 
description  and  general  history  of  every  convicted 
felon,  and  of  every  man  twice  sentenced  to  imprison- 
ment for  any  offence.  These  should  be  made  avail- 
able for  the  information  of  the  public  authorities  of 
every  State.  Put  all  persons  twice  sentenced  to 
imprisonment  for  any  offence  under  police  super- 
vision for  life,  or  such  shorter  term  as  the  court  may 
fix.  Let  them  also  be  forever  deprived  of  the  right 
to  vote  or  hold  office. 

The  habitual  criminal  is  not  likely  ever  to  hold 
public  office,  but  he  ought  not  to  vote  for  those  who 
do.  A  single  conviction  of  felony,  and  a  second 
conviction  for  any  offence  for  which  imprisonment 
has  been  inflicted,  also  indicate  generally  a  deprava- 
tion of  character  which  should  work  a  forfeiture  of 
the  elective  franchise.  In  exceptional  cases  this  may 
be  too  great  a  penalty.  For  such,  there  is  an  ade- 
quate remedy  by  a  resort  to  executive  pardon,  or 
legislative  clemency.  But  in  ninety-nine  cases  out 
of  a  hundred,  the  forfeiture  is  right,  and  the  great 
interests  of  society  demand  its  exaction. 


AS  A   CLASS  TO   BE   TREATED   BY   ITSELF     307 

In  several  of  our  States,  constitutional  or  legislative 
provisions  disqualify  from  voting  or  from  holding 
office  those  who  come  from  other  States,  where  they 
had  been  disqualified  by  conviction  for  crime.  Such 
an  exclusion  evinces  a  spirit  of  comity  which,  it 
would  seem,  should  be  universal,  in  respect  to 
offences  involving  moral  turpitude,  and  which  are 
regarded  by  each  of  the  States  concerned  as  equally 
criminal.1 

It  is  not  altogether  creditable  to  the  United  States 
that  we  have  thus  far  made  so  limited  a  use  of  this 
mode  of  punishment.  It  was  familiar  to  the  ancients  : 
it  is  familiar  to  every  nation  in  Europe.  For  all 
grave  crimes  and  for  many  minor  ones  the  French 
Code  imposes  it.2  Italy  and  Belgium  do  the  same. 
Germany,  Holland,  and  Sweden  allow  the  courts  to 
impose  it,  in  their  discretion,  within  certain  limits. 
"  Civic  degradation  "  for  habitual  criminals  seems  the 
natural  badge  of  their  condition ;  and  it  is  a  badge, 
in  our  land  of  frequent  and  close-fought  elections, 
which  is  sure  to  attract  public  attention,  and  there- 
fore to  put  the  public  on  their  guard. 

While  few  would  object  to  the  other  requirements 
of  registration,  photographing,  and  police  super- 
vision, in  the  case  of  the  hardened  and  professional 
criminal,  they  may  be  thought  by  some  to  be  harsh 
measures  to  apply  upon  a  first  conviction  for  felony, 
or  a  second  sentence  to  jail  for  any  offence. 

But  we  must  try  to  prevent  any  one  from  becoming 
a  habitual  criminal.  The  convicted  felon  has  gone  a 

1  See  Code  of  Georgia,  Rev.  of  1882,  §  129. 

2  Code  Ptnal,  Art.  28,  34;  Law  of  February  2d,  1852. 


3o8     RECOGNITION    OF    HABITUAL   CRIMINALS 

long  way  towards  joining  their  ranks.  He  has 
attacked  the  good  order  of  society  with  violence 
and  effect.  He  ought  not  to  complain  if  the  State 
makes  a  full  record  of  the  affair,  and  gives  it  to  the 
police  of  his  country.  And  is  it  too  much  to  keep 
under  police  supervision  those  who  have  been  twice 
imprisoned,  though  only  for  a  misdemeanor?  Who 
is  there  familiar  with  jails  who  does  not  know  that 
the  cases  are  rare  when  two  such  sentences  are  not 
rapidly  followed  by  a  third,  and  a  fourth?  For  their 
own  sake,  such  men  need  to  feel  that  the  eye  of  the 
police  is  upon  them.  To  know  that  they  are  watched 
is  a  real  terror  and  a  real  deterrent  to  evil-doers.  The 
common  punishment  for  petty  offences  is  a  fine.  If 
imprisonment  is  imposed,  it  is  a  pretty  sure  sign  of 
some  circumstance  of  aggravation;  if  it  is  imposed 
twice,  though  only  for  drunkenness  or  assault,  it  indi- 
cates a  very  bad  opinion  of  the  prisoner  by  the  court. 
The  term  "  police  supervision"  also  is  an  elastic 
one.  It  would  mean  one  thing  for  the  professional 
bank-robber,  and  another  thing  for  the  twice  con- 
victed chicken-thief.  From  the  hardened  felon  who 
expects  to  make  his  living  by  acts  of  violence  or 
fraud,  it  might  require  monthly  reports  of  his  occupa- 
tion, instant  notice  of  a  change  of  residence,  and 
submission  to  frequent  domiciliary  visits  of  inspec- 
tion. To  the  man  who  although  twice  imprisoned 
for  minor  offences,  follows  some  regular  business, 
and  has  not  irrevocably  lost  his  good  name,  it  might 
take  no  formal  shape,  beyond  keeping  up  the  record 
of  his  life  in  the  police  register,  from  such  information 
as  could  be  obtained  from  outside  sources,  without 


AS  A   CLASS  TO   BE   TREATED   BY   ITSELF     309 

giving  him  any  personal  annoyance,  or  attracting  any 
public  attention  to  his  history. 

A  man  who  is  known  to  the  police  to  belong  to 
the  class  of  habitual  criminals,  who  is  publicly  regis- 
tered as  such,  and  has  twice  served  out  a  term  in 
prison,  has  but  a  poor  chance,  no  doubt,  of  gaining 
an  honest  living.  But  no  man  is  wholly  bad,  and  the 
poorest  chance  is  better  than  none. 

It  will  be  both  for  his  interest,  and  that  of  the 
State  where  his  crimes  were  committed,  to  better  his 
prospects  by  removal  to  new  scenes.  But  if  the  State 
assumes  the  responsibility  of  his  release  and  the 
possibility  of  his  removal,  she  ought  to  give  those 
among  whom  he  may  go  the  means  of  knowing 
what  he  has  been.  The  registration  of  these  crimi- 
nals in  one  State  would  do  little  except  drive  them  to 
some  other,  unless  each  State  which  desires  it  can 
have  the  benefit  of  the  registers  kept  elsewhere. 
When  France  adopted  the  Bertillon  system,  there 
was  a  general  exodus  of  the  habitual  criminals  to  the 
next  rich  French-speaking  country,  —  Belgium.  Bel- 
gium then  put  it  into  use  against  them,  and  they 
began  to  migrate  to  Switzerland.  The  Swiss  armed 
themselves  in  the  same  way,  and  with  the  same  suc- 
cess. The  whole  class,  as  door  after  door  was  thus 
closed  against  those  who  belonged  to  it,  was  lessened 
as  well  as  scattered. 

An  exchange  system  in  the  United  States  between 
the  public  authorities  of  the  different  States,  under 
which  the  records  of  each  are  made  accessible  to  all, 
would  be  an  easy  matter  to  arrange.  For  many 
years,  the  "  rogues'  gallery "  of  photographs  in  the 


3io     RECOGNITION   OF   HABITUAL   CRIMINALS 

city  of  New  York,  and  the  police  record  that  accom- 
panied them,  begun  without  the  requirements  of  law, 
were,  by  the  courtesy  of  her  authorities,  often  the 
means  of  following  and  identifying  the  criminals  who 
had  gone  into  other  jurisdictions.  Each  State  might, 
at  slight  expense,  publish  annually  descriptive  regis- 
ters of  all  its  habitual  misdemeanants,  proved  such 
by  a  second  conviction ;  send  copies  to  the  authorities 
of  every  considerable  place  within  its  limits,  and  to 
each  of  its  criminal  tribunals;  and  exchange  others 
with  any  or  all  of  its  sister  States.  Each  name  would 
have  its  number,  and  in  the  graver  cases  at  least  photo- 
graphs should  be  taken,  and  copies  furnished  to  any 
public  officer  on  payment  of  the  necessary  expense. 

It  would  be  also  desirable  to  have  a  sort  of  clear- 
ing house  at  Washington  to  which  all  the  States 
should  report,  and  where  each  could  gain  early  in- 
formation as  to  the  last  advices  from  any  convict  of 
the  dangerous  class.  This  was  one  of  the  recom- 
mendations made  to  the  Department  of  State  by  the 
delegates  to  the  Fifth  International  Prison  Congress 
held  at  Paris  in  1895.  In  their  official  report  it  is 
thus  mentioned :  — 

"  As  an  efficient  agent  for  the  repression  of  crime,  the 
Bertillon  system  is  of  the  highest  value,  and  it  ought  to  be 
in  operation  all  over  the  United  States,  with  a  central  bu- 
reau at  Washington,  under  the  support  and  direction  of  the 
General  Government."1 

Ten  minutes  now  suffices  for  running  through  the 
Bertillon  files,  in  the  Paris  police  offices  (in  which 
1  Report,  Washington,  1896,  pp.  75,  95. 


AS   A   CLASS   TO   BE  TREATED   BY   ITSELF     311 

are  already  the  descriptions  of  many  thousands  of 
criminals),  and  picking  out,  if  it  is  among  them,  that 
which  identifies  a  new-comer.  They  are  so  classified 
and  arranged  that  by  a  simple  process  of  repeated 
exclusions,  the  result  can  be  infallibly  attained  in 
every  case. 

The  measurements  required  are  readily  taken  with 
the  aid  of  a  head  caliper  and  common  rulers  fitted 
with  a  sliding  block.  If  a  man  were  arrested  under 
an  alias  in  California,  and  his  description,  ascertained 
by  the  Bertillon  method,  telegraphed  to  such  a  cen- 
tral bureau  of  registration  at  Washington,  a  reply 
could  be  received  in  half  an  hour  which  would  state 
his  previous  history. 

Any  system  of  dealing  with  habitual  criminals  as  a 
separate  class  must,  in  a  country  like  ours,  be  neces- 
sarily more  complex  than  in  one  of  the  nations  of 
Europe. 

Criminal  justice  is  administered  with  us  by  nearly 
fifty  different  sovereignties,  yet  so  bound  together 
that  every  peaceable  citizen  of  one  has  an  indefeasible 
right  to  travel  into  and  do  business  in  every  other. 
Unless,  then,  convictions  in  one  State  or  Territory, 
in  considering  previous  sentences  to  imprisonment, 
are  given  equal  weight  in  every  other  State  with 
those  had  there,  it  will  be  easy  to  evade  the  force  of 
any  laws  regarding  habitual  criminals,  by  merely 
crossing  the  imaginary  line  which  divides  one  of 
these  jurisdictions  from  the  next.  A  number  of  our 
States  have  passed  statutes  to  meet  this  difficulty. 
Mr.  Livingston  introduced  in  his  Code  of  Crimes  and 


3i2     RECOGNITION   OF   HABITUAL   CRIMINALS 

Punishments  (art.  54)  the  provision  that  a  previous 
conviction  in  any  of  our  States  should  be  as  effectual 
for  such  purposes  as  a  previous  conviction  in  Louis- 
iana. Missouri  and  Georgia  have  made  this  their 
law,  and  Maine,  Virginia,  and  Ohio  include  also  con- 
victions before  any  United  States  court. 

It  may  also  be  necessary  for  Congress  to  make 
further  provision  for  the  reclamation  of  prisoners  re- 
leased on  parole  or  under  surveillance  in  one  State, 
who  have  fled  into  another.  Where,  in  such  a  case, 
the  release  is  conditional  upon  a  continued  resi- 
dence within  the  State  by  which  they  were  imprisoned, 
it  may  be  regarded  as  merely  a  temporary  enlarge- 
ment of  the  jail  limits,  and  extradition  may  be  granted 
under  the  existing  law.1  But  where,  as  may  often  be 
desirable,  the  convict  is  released  with  a  view  to  his 
employment  in  another  State,  that  theory  may  prove 
inadequate  to  justify  his  surrender,  if  he  violate  his 
parole. 

Livingston  may  have  been  right  in  his  day  in  lay- 
ing down  the  peremptory  rule  of  confining  for  life 
all  who  have  been  thrice  sentenced  to  the  peniten- 
tiary. Since  the  invention  of  the  Bertillon  system,  I 
cannot  believe  that  it  is  as  well  calculated  to  serve  the 
community,  or  even  to  deal  fairly  with  the  convict, 
as  that  of  intrusting  the  proper  authorities  with  a  dis- 
cretionary power  of  conditional  release. 

The  objections  to  confining  the  habitual  criminal 
within  four  walls  until  death,  are  indeed  many.  It 
shuts  him  out  from  any  chance  of  beginning  a  new 
1  Drinkall  v.  Spiegel,  68  Connecticut  Reports,  441. 


AS  A   CLASS  TO   BE   TREATED   BY   ITSELF     313 

life  as  an  honest  man.  It  throws  him  as  a  perpetual 
burden  on  the  public  treasury.  It  tends  to  dissuade 
juries  from  conviction  by  the  rigor  of  the  penalty. 
It  makes  the  criminal  reckless  how  far  he  goes,  since 
for  any  crime  short  of  murder,  there  is  the  same 
length  of  imprisonment.  It  may  sometimes  give  him 
the  very  thing  he  wants,  a  free  bed  and  a  free  table. 

Our  prisons  are  already  too  full.  In  1890  the 
census  told  us  that  1315  out  of  every  million  of  our 
population  were  imprisoned  for  crime.  Ten  years 
before,  this  number  was  1169  to  the  million;  in  1870 
only  853.  I  do  not  think  that  this  increase  of  num- 
bers is  simply  due  to  the  increase  of  crime,  nor  at  all 
to  any  increased  efficiency  in  criminal  prosecutions. 
It  is  referable  largely  to  the  fact  that  our  prisons  are 
becoming  boarding-schools  for  the  young,  and  shelters 
for  the  aged.  They  are  really  attractive  to  not  a  few, 
and  those  to  whom  they  are  attractive  are  often  these 
very  habitual  criminals.  They  feel  at  home  there. 
The  jail  gives  them  better  food,  cleaner  beds,  purer 
air,  an  easier  life,  than  they  generally  find  outside. 
Not  a  few  are  vagabonds  during  the  open  season  of 
the  year,  and  count  on  regularly  returning  to  prison 
for  their  winter  residence. 

On  the  other  hand,  police  supervision  for  life,  or 
for  a  term  of  years,  leaves  the  convict  free  to  build 
up  a  new  character,  and  to  earn  his  bread  in  his  own 
way. 

He  is,  no  doubt,  a  constant  object  of  suspicion. 
He  is  sensible  that  he  is  being  continually  watched. 
His  neighbors  will  not  be  unlikely  to  know  it  too. 


3i4     RECOGNITION   OF   HABITUAL   CRIMINALS 

But  with  all  these  disadvantages,  he  is  still  breathing 
the  open  air,  living  in  the  home  of  his  own  choice, 
surrounded,  if  he  will,  by  family  ties,  free  from  ar- 
rest unless  he  deserves  it. 

The  fact  that  most  of  those  who  enter  the  class  of 
habitual  criminals  seem  almost  fated  to  it  from  their 
birth  by  their  physical  constitution  does  not  lessen 
the  right  of  society  to  hold  them  in  this  way  respon- 
sible for  their  misdeeds  so  far  as  is  necessary  for  its 
own  protection.  The  wolf  is  not  to  be  blamed  for 
ferocity,  but  we  shoot  him  at  sight.  A  man,  the  com- 
munity cannot  put  to  death,  unless  in  absolute  self- 
defence.  Then  it  may,  and  it  can  with  equal  right, 
where  the  danger  is  less,  do  any  less  damage  to  him 
which  self-preservation  demands. 

Such  a  system  might  require  for  its  efficacy  the 
multiplication  of  our  police,  but  it  would  be  likely  to 
reduce  the  expenses  of  our  jails  and  penitentiaries. 
Shorter  sentences  would  be  given  if  release  meant 
freedom  from  confinement,  not  from  supervision ;  and 
a  second  offence,  for  which  imprisonment  might  be 
inflicted,  would  be  less  readily  committed. 

But  to  circumscribe  and  reduce  the  class  of  habit- 
ual criminals  is  an  end  which,  if  attained,  justifies 
any  outlay  of  money.  Every  member  of  that  class  is 
a  perpetual  drain  on  the  community,  by  day  and  night. 
He  must  be  put  at  a  disadvantage,  and  kept  there  at 
whatever  cost,  and  whatever  inconvenience  to  society 
or  himself.  He  gives  no  quarter,  and  he  must  expect 
none. 


AS   A   CLASS  TO   BE   TREATED   BY   ITSELF     315 

We  speak  of  criminals  in  a  proverbial  phrase,  as 
to  be  kept  "  under  watch  and  ward,"  and  we  have 
assumed  that  when  the  ward  is  relaxed,  the  watch 
may  cease  also.  It  may  in  many,  in  most  cases ;  but 
habitual  crime  requires,  if  not  both,  then  at  least 
habitual  watch.  The  worst  enemies  of  the  law  ought 
never,  for  a  moment,  to  be  beyond  its  sight  and 
reach. 

The  criterion  proposed  for  distinguishing  the  pro- 
fessional from  the  ordinary  criminal  —  that  of  repeated 
convictions  and  sentences  to  imprisonment  —  is  but 
a  rude  one.  There  are  notorious  rogues  who  are  never 
fairly  caught  but  once ;  there  are  men  who  may  be 
found  guilty  of  two  or  three  offences  grave  enough 
to  send  them  to  jail,  and  yet  have  no  thought  or 
power  of  making  a  livelihood  of  crime.  But  to  take 
any  other  rule  of  discrimination  would  leave  too  much 
to  ex  parte  human  judgment.  It  must  be  exercised  ex 
parte,  unless  there  is  a  charge  and  a  hearing,  and  if 
these  are  to  be  required,  it  seems  proper  to  leave  them 
to  come  only  in  the  common  course  of  criminal  pro- 
cedure, and  let  the  record  of  the  court  determine  the 
result.  The  test  is  also  a  familiar  one,  already  pro- 
vided for  analogous  purposes  in  the  statutes  of  every 
State.  If  it  had  even  less  merits  of  its  own,  this  gen- 
eral sanction  by  long  use  would  seem  sufficient  to 
justify,  if  not  to  require,  our  reliance  on  it. 


CHAPTER   X 

THE  DEFENCE  BY  THE    STATE  OF  SUITS  ATTACKING 
TESTAMENTARY  CHARITIES  1 

A  CHARITABLE  bequest  is  seldom  relished  by 
heirs.     In  most  wills,  the  executor  is  himself 
an  heir.     If,  then,  the  charitable  intentions  of  the 
testator  are  to  be  carried  out,  it  must  often,  if   not 
ordinarily,  be  done  by  unfriendly  hands. 

As  every  will  is  a  departure  from  the  usual  rules  of 
succession  established  or  approved  by  the  law,  it  is 
also  a  kind  of  challenge  to  the  community.  It  asserts 
that  the  testator  can  dispose  of  his  property  better 
than  they  can ;  that  he  can  make  a  law  for  himself 
better  than  the  law  of  the  land.  Our  American 
States  have  adhered  to  the  ancient  principle  of 
Roman  law,  as  found  in  the  Twelve  Tables,  that  for 
every  citizen  "  uti  legassit  super  pecunia,  tutelave  sues 
rei,  itajus  esto"  more  closely  than  did  Rome  herself. 
In  most  of  them  there  is  no  statutory  restriction  on 
the  right  to  disinherit.  Precisely  for  this  reason  an 
American  will  is  peculiarly  open  to  attack.  The 
sympathies  of  the  people  are  with  the  heir,  who  has 
been  stripped  of  everything,  when  they  might  not  be 

1  The  greater  part  of  this  chapter  is  taken  from  a  paper  read  by 
the  author  in  the  Judicial  section  of  the  Congress  of  Jurisprudence, 
held  at  Chicago  in  connection  with  the  Columbian  Exposition,  in  1893. 


DEFENCE   OF  TESTAMENTARY   CHARITIES   317 

aroused  if  some  Falcidian  law  guaranteed  him  a  cer- 
tain share  of  the  inheritance.  The  validity  of  the 
will  must  be  determined  by  a  jury,  and  the  jury  will 
be  a  fair  representative  of  popular  sentiment. 

Charitable  bequests  would  be  in  less  danger,  also, 
had  we  a  form  of  action  such  as  is  familiar  to  most 
countries,  by  which  wills  can  be  attacked  directly  and 
openly,  when  the  heir  is  passed  over  without  due 
cause.  But,  so  far  as  I  am  aware,  there  is  no  remedy 
for  a  mere  undutiful  will,  except  in  Louisiana.  Else- 
where the  heir  can  gain  what  the  community  are  apt 
to  regard  as  his  rights  against  such  an  instrument 
only  by  breaking  it  altogether,  as  the  act  of  one  with- 
out testamentary  capacity,  or  unduly  influenced,  or 
by  maintaining  some  legal  objection  to  particular 
provisions  adverse  to  his  interest. 

Where  the  devisees  or  legatees  are  natural  persons, 
taking  a  beneficial  estate  in  their  own  right,  they 
can  be  trusted  to  protect  themselves.  If  minors,  a 
guardian  ad  litem  will  maintain  their  interests,  and,  if 
necessary,  even  against  their  parents. 

So  provisions  for  charities  may  be  adequately 
defended,  if  made  in  trust  to  corporations  having 
funds  with  which  to  employ  proper  counsel.  But  it 
is  not  so  when  the  trustees,  whether  natural  persons 
or  corporations,  are  without  funds,  or,  if  corporations, 
are  not  under  efficient  management.  They  can  then 
hardly  be  expected  to  present  their  claims  in  the 
most  effective  way. 

The  executor,  indeed,  represents  the  dead,  but  if  he 
be  one  of  the  heirs  who  would  otherwise  succeed,  his 
adverse  interest  will  be  likely  to  make  his  defence 


3i 8     THE  DEFENCE  BY  THE  STATE  OF  SUITS 

perfunctory.  He  may,  indeed,  virtually  lead  the 
attack,  by  bringing  an  equitable  action,  after  the 
probate  of  the  will,  to  determine  its  proper  construc- 
tion and  effect,  where  these  are  doubtful.  The  doubt 
may  be  so  stated  as  to  exaggerate  its  importance. 
Considerations  and  authorities  tending  to  defeat  the 
will  may  be  brought  to  the  attention  of  the  court, 
and  others  left  unnoticed  which  go  to  support  it. 

It  is  true  that  the  court,  in  such  a  suit,  may  often, 
perhaps  ordinarily,  be  trusted  to  recall  the  law,  and 
apply  the  proper  rule;  but  a  decision  upon  a  case 
that  has  been  but  half  argued  is  seldom  quite  satis- 
factory, nor  is  it  the  true  office  of  a  judge  to  supply 
the  want  of  counsel  for  the  absent  or  undefended. 
This  is  a  duty  not  to  be  disregarded,  when  it  is  forced 
upon  the  bench,  but  the  rarer  the  occasions  for  its 
exercise,  the  better  will  be  the  administration  of 
justice.  It  is  a  duty  of  the  State,  but  one  which 
the  State  can  best  discharge  through  its  executive 
officers. 

The  French  Code  of  Civil  Procedure  (article  83), 
provides  that  notice  of  every  suit  concerning  public 
corporations  and  establishments,  and  gifts  and  lega- 
cies for  the  benefit  of  the  poor,  shall  be  given  to  the 
principal  law  officer  of  the  State  (procttreur  de  la  rt- 
publique],  and  bestows  upon  him  authority  to  inter- 
vene in  any  other  cause  in  which  he  may  deem  his 
participation  necessary. 

England  makes  it  the  duty  of  her  Attorney-General 
to  institute  all  proceedings  necessary  to  secure  the 
due  application  and  administration  of  charitable  en- 
dowments. A  similar  function  has  been  cast  upon  the 


ATTACKING   TESTAMENTARY   CHARITIES     319 

Attorney-General  of  many  of  our  States.  I  believe 
that  this  should  be  the  practice  in  all,  and  that  the 
French  law  might  well  be  followed,  by  requiring  ser- 
vice of  process  upon  the  Attorney-General  in  every 
suit  affecting  either  the  validity  or  the  administration 
of  a  charitable  gift. 

It  would  not  be  difficult  for  him  to  ascertain 
whether,  among  the  other  parties  to  the  controversy, 
were  any  who  would  adequately  present  the  cause 
of  the  charity.  His  function  in  this  respect  would 
be  somewhat  analogous  to  that  of  the  Queen's 
Proctor  in  England,  in  uncontested  divorce  suits. 
He  would  be  bound  to  see  that  all  the  material  facts 
were  placed  before  the  court;  that  there  was  noth- 
ing savoring  of  collusion;  and  that  the  leading 
authorities  in  support  of  the  bequest,  if  its  validity 
were  questioned,  were  fairly  presented.  Should  he 
find  that  others  stood  ready  to  do  this,  his  active 
intervention  would  be  unnecessary;  but  otherwise 
it  would  be  vital  to  the  attainment  of  justice. 

The  appearance  of  the  Attorney-General  in  pro- 
ceedings for  the  probate  of  a  will  may  seem  more 
like  an  intrusion  into  matters  of  private  concern  than 
his  participation  in  suits  arising  as  to  the  meaning 
and  effect  of  the  instrument.  But  where  the  exec- 
utor is  adversely  interested,  it  is  never  safe  to  trust 
him  implicitly.  A  very  little  inattention  or  neglect 
on  his  part  will  suffice  to  defeat  the  probate.  The 
charitable  provisions  may  be  inconsiderable,  as  com- 
pared with  the  other  bequests,  but,  be  they  great 
or  small,  the  State  which  has,  for  its  own  good, 


320     THE  DEFENCE  BY  THE  STATE  OF  SUITS 

given  the  testator  power  to  make  them,  has  an 
interest  in  their  preservation,  not  only  for  what  they 
are  in  themselves,  but  for  their  effect  on  the  commu- 
nity. A  government  under  which  charitable  wills 
are  generally  set  aside  will  soon  come  to  have  few 
of  them. 

The  object  and  effect  of  every  charitable  bequest 
is  to  confer  a  public  benefit;  else  it  is  no  charity. 
I  say  its  effect,  for  on  this  point  the  opinion  of  the 
community,  as  manifested  in  its  laws,  must  be  de- 
cisive. Turgot  did  not  speak  for  any  century  but 
his  own  when  he  declared  that  all  permanent  endow- 
ments were  permanent  evils.  The  tendencies  of 
Christian  civilization  are  all  towards  altruism.  As 
the  range  of  superstitious  uses  has  been  narrowed, 
that  of  public  uses  has  been  enlarged.  We  under- 
stand better  the  duties  of  man  to  man,  and  if  the 
performance  of  some  of  them  is  too  often  deferred 
until  after  death,  there  is  all  the  more  reason  why 
the  State  should  see  to  it  that  the  will  by  which 
it  permits  this  to  be  done  should  have  its  full 
effect. 

Capital  is  accumulated  for  a  few  by  the  labors  of 
many.  Charity  returns  it  to  the  many.  The  indi- 
vidual, under  the  forces  of  civilization,  is  yielding  to 
the  masses  by  daily  necessity.  In  chanty,  he  yields 
from  a  better  motive.  It  is  the  stream  flowing  to  the 
sea.  It  is  the  gift  coming  back  to  the  giver.  In 
no  country  has  this  process  gone  on  so  rapidly  as 
in  the  United  States  of  the  nineteenth  century. 
The  example  in  this,  as  in  so  much  else,  was  set 


ATTACKING   TESTAMENTARY   CHARITIES     321 

by  Franklin ;  and  the  richer  among  his  countrymen, 
gaining  wealth  in  the  same  way  as  he,  as  the  easy 
reward  of  honest  and  intelligent  industry  under 
favorable  circumstances,  have  followed  him  in  leav- 
ing part  of  it  behind  them  for  the  service  of  their 
fellow-citizens.  With  us  it  is  a  subject  of  remark 
when  a  rich  man's  will  contains  no  charitable  be- 
quests. With  us,  therefore,  it  is  peculiarly  the  duty 
of  the  State  to  guard  this  tribute  from  the  dead 
which  public  opinion  almost  demands,  and  no  surer 
safeguard  can  be  found  than  the  intervention  of  the 
principal  law  officers  of  the  government  from  whose 
statutes  the  will  derives  its  force. 


21 


CHAPTER  XI 

SALARIES  FOR  MEMBERS  OF  THE  LEGISLATURE. 

IT  is  one  of  the  oldest  of  English  political  traditions 
that  the  member  of  a  legislative  body  should 
serve  without  reward.  He  occupies  a  representative 
position.  He  is  an  agent  for  others,  and  the  original 
conception  of  the  nature  of  agency  made  it  always 
a  gratuitous  contract.  He  is  a  spokesman  for 
others,  and  an  advocate  in  most  countries  has  been 
considered  as  occupying  a  position  of  trust  and 
honor,  which  he  would  degrade  by  demanding 
compensation. 

Of  the  three  departments  of  government  estab- 
lished under  the  familiar  though  somewhat  unpracti- 
cal division  of  power  which  has  found  its  way  into 
most  of  our  American  Constitutions,  the  legislative  is 
the  only  one  whose  principal  members  have  not 
always  been  paid  for  their  time. 

The  King,  and  his  successors  under  republican  in- 
stitutions in  independent  States,  have  necessarily  been 
subjected  to  large  expense  in  maintaining  such  an 
establishment  as  the  courtesies  of  official  life  require. 
They  have  been  forced  to  live,  to  entertain,  to  travel, 
in  a  certain  style,  were  it  only  to  maintain  the  dignity 
of  the  people  for  whom  they  stand,  in  the  eyes  of 
foreign  powers.  Their  appointments,  therefore,  have 
been  on  a  liberal  scale,  and  in  case  of  Presidents  of 


SALARIED    LEGISLATURES  323 

republics  some  regard  has  often  been  paid  to  the 
future  by  giving  them  a  salary  from  which  something 
can  be  saved  towards  their  support  on  retirement  to 
private  life.  In  the  United  States  this  has  been  done 
in  part  by  indirect  and  generally  unnoticed  means, 
through  a  gradually  increasing  number  of  items  in 
the  appropriation  bills  for  horses  and  carriages,  fur- 
niture, hot-houses,  conservatories,  fuel,  light,  and  at- 
tendance at  the  executive  mansion,  books  and 
stationery,  and  other  "  contingent  expenses,"  and 
according  to  the  President  a  tacit  right  to  call  on  the 
navy  to  furnish  the  music  for  his  state  dinners,  or  the 
steamer  for  his  summer  vacation  trips. 

Judges,  as  they  must  devote  their  entire  time  to 
their  official  duties,  have  everywhere  been  salaried 
officers,  and  often  received,  when  superannuated  or 
otherwise  withdrawn  from  service,  a  retiring  pension. 

From  the  days  of  the  Roman  republic,  however, 
until  the  adoption  of  the  Constitution  of  the  United 
States,  it  was  otherwise  with  members  of  legislative 
bodies.  To  pay  them  was  deemed  not  only  to  de- 
grade their  office,  but  to  present  a  temptation  for  its 
abuse.  The  natural  measure  of  compensation,  were 
any  offered,  would  be  the  time  spent  in  their  public 
duties.  But  most  nations  have  been  content  with  the 
maxim  that  the  fewest  laws  were  the  best,  and  there- 
fore solicitous  that  legislative  sessions  should  be 
short.  Wherever  any  allowance  was  made  to  the  law 
makers,  it  was  by  way  of  indemnity,  not  compensa- 
tion. Their  expenses  only  were  defrayed. 

This  was  the  English  practice  when  parliaments 
there  first  took  shape.  The  King's  writ  of  summons 


324  SALARIES   FOR   MEMBERS 

not  only  directed  the  election  of  knights,  citizens, 
and  burgesses,  but  ordered  the  sheriff  to  levy  upon 
the  landholders  (who  were  electors  of  the  shire),  for 
the  benefit  of  their  representatives,  such  sums  as 
would  meet  their  "  reasonable  expenses  "  in  travelling 
to  and  from  parliament  and  while  attending  its  ses- 
sions. Later,  these  sums  were  made  certain,  and  the 
levy  was  to  be  for  a  specified  number  of  days,  at  the 
rate  of  four  shillings  a  day  for  each  knight  of  the 
shire,  and  half  that  sum  for  a  citizen  or  burgess.1 
The  members,  at  this  period,  came  to  parliament 
with  a  commission  in  the  fashion  of  a  general  letter 
of  attorney,  by  which  "plena  potestas  "  was  given  to 
act  for  their  constituents.2 

Service  upon  such  a  footing  was  obviously  incom- 
patible with  the  character  which  the  House  of  Com- 
mons soon  came  to  assume.  The  members  were 
under  an  implied  obligation  to  keep  the  particular 
interests  of  those  who  sent  and  paid  them  in  view, 
and  to  obey  any  directions  which  they  might  see  fit 
to  give.  They  could  not  act  the  free  part  of  rep- 
resentatives of  the  English  people  and  of  all  the 
people.  As  soon  as  this  conception  of  a  member's 
duty  to  his  country  at  large  began  to  prevail,  the  writs 
ceased  to  call  for  any  levy  for  their  use,  and  they 
became,  for  the  first  time,  independent  of  local 
dictation. 

By  this  time  also  the  landed  interest  had  found 
how  valuable  parliamentary  representation  was,  and 

1  Blackstone's  "  Commentaries,"  Cooley's  ed.  i.  *  174,  and  note. 

2  Taylor's  "  Origin  and  Growth  of  the  English  Constitution,"  i. 
476. 


OF   THE   LEGISLATURE 


325 


there  was  no  trouble  in  filling  the  House  of  Com- 
mons with  those  who  were  willing  to  serve  at  their 
own  charges. 

The  first  English  settlements  were  made  in  the 
United  States  before  this  change  had  been  fully  ac- 
complished, and  our  colonial  legislatures  generally 
provided  for  the  expenses  of  their  members,  but  at 
the  cost,  not  of  the  counties  or  towns  from  which 
they  came,  but  of  the  general  treasury. 

When  the  Continental  Congress  came  into  existence, 
each  State  paid  in  the  same  way  for  the  expenses  of 
its  delegation.  In  some  of  the  Southern  States  a  lib- 
eral allowance  for  this  purpose  was  made.  That  of 
Virginia,  Jefferson,  in  his  "  Notes  on  Virginia,"  esti- 
mates as  averaging  $7,000  a  year  in  gold.  The  repre- 
sentatives of  the  Northern  States,  in  which  there  were 
fewer  independent  fortunes,  were  men  accustomed  to 
live  more  simply,  and  generally  received  much  less. 
Connecticut  was  in  the  habit  of  electing  six  delegates, 
but  providing  that  not  more  than  three  at  any  one  time 
should  be  in  attendance  at  Congress  at  the  expense 
of  the  State.  The  others  might  lend  their  presence, 
if  they  chose,  at  their  own  charges,  but  not  otherwise.1 

When  the  Convention  that  framed  the  Constitution 
of  the  United  States  met,  this  subject  was  discussed 
at  great  length  and  on  several  occasions.  The  Vir- 
ginia resolutions,  which  constituted  the  original  basis 
of  their  work,  proposed  that  senators  and  represen- 
tatives should  "  receive  liberal  stipends  by  which  they 
may  be  compensated  for  the  devotion  of  their  time 
to  the  public  service." 

1  Connecticut  State  Records,  i.  10. 


326  SALARIES   FOR   MEMBERS 

It  was  urged  that  under  the  system  prevailing  as  to 
the  existing  Congress,  the  best  men  often  declined  to 
serve,  on  account  of  pecuniary  inability;1  and  the 
reply  was  that  the  best  men  were  seldom  the  poorest, 
and  honor  counted  for  more  than  pay.  The  word 
"  liberal "  was  finally  struck  out,  and  after  some  hes- 
itation as  to  whether  or  not  to  replace  it  by  either 
"  adequate"  or  "fixed,"2  the  article  was  put  in  the 
shape  finally  adopted,  by  which  the  rule  was  estab- 
lished (Art.  I.  Sec.  6)  that  "  the  senators  and  rep- 
resentatives shall  receive  a  compensation  for  their 
services,  to  be  ascertained  by  law  and  paid  out  of  the 
treasury  of  the  United  States." 

This  was,  I  believe,  the  first  declaration  in  history 
by  any  government  that  representatives  in  a  legisla- 
tive body  should  be  paid  for  their  services.  It  was 
carried  against  strong  opposition.  Gov.  Gerry  stated 
it  as  one  of  the  reasons  why  he  could  not  concur  in 
behalf  of  Massachusetts,  in  signing  the  Constitution.3 

Attempts  were  made,  in  the  course  of  the  discus- 
sions, to  agree  on  some  rate  of  compensation  which 
should  be  definitely  fixed  in  the  Constitution  itself. 
One  delegate  advocated  $5  a  day,  and  another  $4, 
but  the  general  opinion  was  that  any  sum  which  could 
be  named  would  appear  so  extravagant  to  many  of 
the  people  that  the  ratification  of  the  Constitution 
might  be  imperilled.  There  were  some  of  the  South- 
ern members  also  who  opposed  the  grant  of  any  com- 
pensation, on  the  ground  that  the  want  of  it  was  the 
best  way  to  fill  Congress  with  men  of  property,  and 

1  Madison's  Journal,  Scott's  ed.,  153. 
2  Ibid.,  153,  1 60,  220,  248,  445.  8  Ibid.,  740. 


OF   THE   LEGISLATURE  327 

that  only  if  so  constituted  could  it  be  depended  on 
to  guard  the  different  interests  to  be  committed  to  its 
keeping.1 

The  power  thus  intrusted  by  the  Constitution  to 
Congress  was  certainly  not  abused  at  first.  A  law 
was  passed  giving  each  member  six  dollars  for  each 
day  of  actual  attendance,  and  six  dollars  more  for 
every  twenty  miles  of  distance  by  the  usual  route  to 
and  from  his  home.  The  senators  in  the  first  Con- 
gress asked  and  secured  a  dollar  a  day  more,  in  view 
of  their  superior  dignity,  but  the  house  insisted,  in 
1796,  that  its  members  should  be  put  upon  an 
equality  with  them. 

Twenty  years  later  an  annual  salary  of  $1,500  was 
substituted  for  the  per  diem  allowance,  and  the  meas- 
ure made  to  apply  to  the  Congress  which  passed  the 
law.  This  retroactive  feature  of  the  bill  made  it  ex- 
ceedingly unpopular  throughout  the  country.  The 
first  Congress  had  proposed  an  amendment  to  the 
Constitution  prohibiting  any  such  action,  which  re- 
ceived the  approval  of  a  majority  of  the  States  which 
voted  on  the  question  of  ratification,  though  not  of 
the  necessary  two  thirds.2  The  people  were  indig- 
nant that  a  rule  of  propriety  which  had  come  so  near 
to  finding  a  place  in  the  Constitution  had  been  vio- 
lated. The  legislature  of  Massachusetts  adopted  a 
formal  protest.  Many  of  the  representatives  who 
had  supported  the  law  lost  their  seats ;  and  before 
the  session  closed  it  was  repealed.  The  next  Con- 

1  Madison's  Journal,  Scott's  ed.,  247,  284,  494. 

2  Annual  Report  of  the  Am.  Hist.  Association  for  1896,  vol.  ii. 
PP-  34,  317. 


328  SALARIES   FOR   MEMBERS 

gress  replaced  it  by  one  which  returned  to  the  per 
diem  plan,  but  made  the  rate  eight  dollars  instead  of 
six  dollars.  This  stood  until  1856,  when  a  bill  pro- 
spective in  its  terms,  established  the  compensation  of 
members  of  both  houses  upon  the  footing  of  a  salary. 
The  amount  was  made  $3,000,  which  was  raised  in 
1866,  when  gold  was  at  a  considerable  premium,  to 
$5,000,  and  in  1873  to  $7,500.  This  last  measure 
was  again  a  retrospective  one,  and  with  the  same 
results  for  its  promoters  as  in  I8I6.1  There  was  a 
general  cry  of  "  back-pay  grab  "  which  defeated  the 
re-election  of  most  of  the  representatives  who  had 
taken  advantage  of  its  provisions,  and  led  to  the  res- 
toration, during  the  next  year,  of  the  former  rate. 
Since  then  the  only  substantial  change  has  been  to 
give  each  member  a  clerk  at  the  public  expense. 

The  first  European  nation  to  follow  the  American 
lead  in  this  matter  was  Belgium.  Under  her  Con- 

1  It  is  an  assuring  indication  of  the  good  sense  of  the  American 
people  that  so  little  has  been  seriously  attempted  in  the  line  of  con- 
stitutional amendments,  and  that  the  few  which  have  been  proposed 
by  Congress  have  generally  demonstrated  their  fitness  by  securing 
prompt  ratification.  This  makes  the  more  remarkable  the  rejection 
of  that  forbidding  retrospective  laws  to  increase  the  pay  of  members 
of  Congress.  Only  nineteen  amendments  have  ever  been  thus  pro- 
posed, and  of  these  but  four  failed  to  secure  the  approval  of  a  majority 
of  the  States. 

One  of  the  four  was  that  of  1789  which  has  been  described;  an- 
other that  of  1789,  regulating  the  apportionment  of  representatives; 
another  that  of  1810,  disfranchising  any  citizen  of  the  United  States 
who  might  accept  any  title  of  nobility  or  honor,  or  without  consent 
of  Congress  accept  any  emolument  from  any  foreign  power;  and  the 
last  that  of  1861,  to  prevent  any  future  amendment  of  the  Constitu- 
tion for  the  abolition  of  slavery. 


OF   THE   LEGISLATURE  329 

stitution  of  1831  the  deputies  in  the  lower  house  of 
her  legislative  assembly  received  eighty  dollars  for 
each  month  of  the  session.  This  sum  was  fixed  as 
a  mode  of  reimbursement  for  money  paid  out,  not 
remuneration  for  services  rendered,  and  the  members 
from  Brussels  could  not  claim  it,  they  not  being 
necessarily  subjected  to  anything  more  than  their  or- 
dinary expenses.  To  the  senators  nothing  was  given. 
No  one  was  eligible  to  that  office  who  was  not  a  large 
taxpayer,  and  they  therefore  presumably  had  no 
occasion  to  look  to  the  public  treasury. 

Our  States  have  generally  adhered  to  the  practice 
of  paying  a  daily  allowance,  which  is  often  limited  to 
a  fixed  number  of  days,  or  reduced  after  a  fixed 
number  of  days  has  elapsed.  In  the  few  which  have 
substituted  salaries,  the  amount  is  not  greater  than 
would  pay  the  board  and  incidental  expenses  of  the 
member  during  the  continuance  of  the  session. 

The  absence  of  an  hereditary  aristocracy,  or  any- 
thing in  the  nature  of  a  leisured  class  in  this  country 
made  it  necessary  at  least  to  indemnify  our  legisla- 
tors against  the  actual  cost  of  their  temporary  resi- 
dence at  the  capital.  The  growing  length  of  Con- 
gressional sessions  has  probably  justified  the  change 
of  policy  by  the  United  States.  They  have  come 
to  take  most  of  the  time  of  their  senators  and  repre- 
sentatives, and  it  is  proper  that  they  should  pay 
something,  at  least,  towards  the  support  of  their 
families. 

Soon  after  the  passage  of  the  Reform  Bill  in  Eng- 
land, the  leaders  of  the  working  people  there  began 


330  SALARIES   FOR   MEMBERS 

to  advocate  the  introduction  of  salaries  for  members 
of  the  House  of  Commons,  as  well  as  the  repeal  of 
the  statute  which  imposed  a  property  qualification 
for  their  election.  Of  the  six  points  in  the  People's 
Charter  of  1838,  these  were  two.1 

The  latter  only  met  with  any  general  favor.  That, 
after  a  few  years,  was  carried,  but  the  other  both  the 
great  parties  have  always  hitherto  refused  to  support. 
Nor  has  it  received  the  adhesion  of  those  who  may 
be  called  the  philosophical  reformers.  John  Stuart 
Mill,  Hare,  and  Bryce  have  pronounced  strongly 
against  it.2  Justin  McCarthy,  no  doubt,  fairly  repre- 
sented the  state  of  public  opinion,  on  the  part  of  the 
liberal  school  of  politics,  not  less  than  the  conserva- 
tive side,  when  he  spoke  of  it  in  his  "  History  of  Our 
Own  Times  "  as  decidedly  objectionable."  3 

The  revolutionary  movements  of  1848,  though  they 
did  little  to  advance  the  cause  of  Chartism  in  Eng- 
land, left  lasting  effects  on  the  Continent.  The  Con- 
stitution adopted  in  November  of  that  year  by  the 
French  Republic  contained  an  article  (chap,  v., 
Art.  38)  providing  that  "  every  representative  of  the 
people  is  to  receive  a  remuneration  which  he  is  not  at 
liberty  to  renounce."  4  It  was  a  natural  complement 
to  two  of  the  preceding  articles  (34  and  35)  in  the 

1  Jephson,  on  "  The  Platform,"  ii.  171. 

2  Mill's  "  Dissertations  and  Discussions,"  iv.  96 ;  Bryce's  "  Ameri- 
can Commonwealth,"  i.  191.  8  Vol.  i.  p.  80. 

4  Denmark  at  about  the  same  time  adopted  the  rule  of  compensa- 
tion, and  has  always  adhered  to  it.  It  also  took  root  in  Norway. 
Prussia  put  the  French  provision  into  her  Constitution  of  1850,  in 
almost  the  same  words,  as  to  members  of  the  lower  house. 


OF   THE   LEGISLATURE  331 

same  chapter,  which  declared  that  "  the  members  of 
the  national  assembly  are  the  representatives,  not  of 
the  department  which  nominates  them,  but  of  the 
whole  of  France:  they  cannot  receive  imperative 
instructions."  Three  years  later,  all  were  swept  away 
by  the  Constitution  of  1851,  framed  by  Louis  Napo- 
leon, in  which  any  payment,  either  to  senators  or 
deputies,  was  prohibited  (chap,  iv.,  Art.  22 ;  chap,  v., 
Art.  37).  He  too  was  consistent  with  himself.  De 
Tocqueville  had  written  with  a  prophetic  instinct  a 
few  years  before,  that  when  a  democratic  republic  ren- 
ders offices,  which  had  formerly  been  remunerated, 
gratuitous,  it  may  safely  be  believed  that  that  State 
is  advancing  to  monarchical  institutions."  l 

During  the  brief  life  of  the  Constitution  of  1848  a 
law  was  passed  under  which  the  deputies  received 
a  salary  of  $1,800.  Immediately  after  the  fall  of 
the  second  empire,  it  was  restored,  and  senators 
and  deputies  were,  in  1875,  placed  upon  the  same 
footing.2  That  of  the  former  has  recently  been  raised 
to  $3,000. 

The  French  national  assembly  is  not  ordinarily  in 
session  for  more  than  five  months  of  the  year.  Its 
members  come  to  the  capital  from  a  distance  but 
little  greater  than  that  travelled  by  members  of  the 
British  House  of  Commons,  and  there  is  no  other 
reason  why  one  nation  should  give  and  the  other  deny 
compensation  to  the  representatives  of  its  people,  ex- 
cept that  found  in  the  more  aristocratic  character  of 

1  Democracy  in  America.,  i.  224,  Langley's  ed. 

2  Codes  Franfais  et  Lois  Usuelles,  Riviere's  ed.,  pp.  8,  II.     Laws 
of  Aug.  2  and  Nov.  30,  1875. 


332  SALARIES   FOR   MEMBERS 

the  older  government  This  is  steadily  waning.  The 
lowering  of  English  rents  has  been  a  severe  blow  to 
the  county  family.  The  extension  of  the  parliamen- 
tary franchise  has  brought  new  men,  and  new  kinds 
of  men,  into  positions  of  political  influence.  The 
very  system  of  primogeniture,  with  the  traditions 
which  have  grown  up  to  strengthen  its  hold  on  English 
society,  is  continually  driving  more  and  more  of  the 
titled  and  landed  class  to  seek  their  fortunes  in  trade, 
and  make  a  name  and  place  for  themselves  by  their 
own  exertions.  If  such  men  can  no  longer  be  sent 
to  parliament  by  family  interest ;  if  the  only  way  to 
gain  a  seat  is  to  commend  themselves  to  the  mass  of 
the  people ;  if  they  have  nothing  to  live  on,  should 
they  secure  an  election,  but  a  slender  allowance 
charged  on  a  diminishing  estate,  —  they  are  not  un- 
likely to  come  to  view  this  question  of  payment  for 
parliamentary  service  in  a  new  light. 

The  House  of  Commons  has  undergone  a  greater 
change  within  the  last  thirty  years  than  most  English 
writers  are  willing  to  acknowledge.  It  does  not  yet 
fairly  represent  in  its  composition  the  people  at 
large,  but  it  is  fast  losing  its  ancient  character  as 
a  body  of  landlords  or  dependents  of  landlords. 

Were  it  not  for  the  want  of  salaries,  this  change 
would  be  much  more  rapid.  As  things  stand,  if  the 
workingmen  wish  to  send  John  Burns  there,  they 
must  provide  for  his  support  out  of  their  own  pockets. 
If  Ireland  desires  a  representation  that  really  repre- 
sents her,  her  hundred  delegates  must,  almost  to  a 
man,  be  maintained  at  London  by  public  subscrip- 
tions, and  largely  by  American  money. 


OF  THE   LEGISLATURE  333 

There  is  something  unseemly  and  incongruous  in 
the  dependence  which  such  a  system,  in  its  practi- 
cal working,  entails  on  the  legislator  who  looks  to 
private  charity  for  the  payment  of  his  board  bill. 
Particularly  is  this  true  where  the  funds  come  in 
great  part  from  a  foreign  country,  and  are  contributed 
by  those  whose  motive  is  the  hope  of  effecting  a  fun- 
damental change  in  the  British  Constitution.  The 
American  Irishman  aids  in  keeping  the  Irish  parlia- 
mentary delegation  full,  because  he  thinks  it  will 
further  a  repeal  of  the  Act  of  Union  of  a  hundred 
years  ago.  The  very  fact  that  their  support  is  pro- 
vided for  from  such  a  source  puts  the  Irish  members 
under  a  certain  obligation  to  work  towards  that  end. 
They  would  probably  do  so  without  the  motive ;  but 
that  they  are  placed  in  such  a  situation  is,  of  itself,  a 
reproach  to  the  laws  which  make  it  possible,  if  not 
necessary. 

Germany,  with  her  popular  assembly  elected  by 
universal  suffrage  and  continuing  for  a  five  years' 
term,  is  faced  by  a  similar  demand.  There,  as  in 
England,  the  influence  of  an  aristocracy  joined  to 
the  fears  of  capital  is  in  steady  opposition  to  any 
change,  and  there  is  a  constitutional  provision  that 
"  the  members  of  the  Reichstag  shall  not  be  allowed 
to  draw  any  salary  or  be  compensated,  as  such."  If 
the  representatives  of  the  people  were  to  be  paid 
from  the  treasury,  and  paid  enough  to  justify  a  work- 
ingman  in  laying  down  his  tools  with  the  certainty 
that  his  family  would  be  well  provided  for  while  he 
was  at  the  capital,  the  ranks  of  the  socialist  members 
would  soon  increase. 


334  SALARIES   FOR   MEMBERS 

In  Italy  custom  has  relieved  the  government  from 
any  serious  difficulty  in  dealing  with  this  question. 
The  saying  there  is  that  the  senate  is  at  Rome,  but 
not  the  senators.  Most  of  them,  like  the  peers  in 
the  British  House  of  Lords,  though  for  different 
causes,  are  only  occasionally  at  the  capital.  No 
compensation  is  paid  to  the  members  of  either  house. 
They  have,  however,  a  free  pass  to  and  from  Rome 
over  the  railways,  and  it  is  freely  used. 

Bazin,  in  his  "  Italians  of  To-day,"  mentions  a  con- 
versation on  this  subject  with  a  senator  from  Vicenza 
who  had  been  twenty  years  in  office.  It  was  seldom, 
he  was  told,  that  a  majority  of  senators  were  in  at- 
tendance. Most  of  them  were  to  be  found  at  their 
homes,  engaged  in  ordinary  business  pursuits.  The 
physician  was  visiting  his  patients,  the  lawyer  advis- 
ing his  clients,  the  professor  meeting  his  classes. 
Few  senators  or  deputies  were  men  of  large  fortune, 
but  all  had  either  some  independent  means,  or  an 
assured  income  from  their  own  industry.  They  felt 
that  under  such  a  system,  as  representatives  of  the 
people,  they  were  more  vitally  in  touch  with  them 
than  could  be  the  case  were  each  expected  to  re- 
main at  the  capital  through  the  entire  legislative 
session. 

Somewhat  similar  results  follow  in  those  States  of 
the  United  States  where  free  railroad  passes  are  a  per- 
quisite of  legislative  membership.  The  representative 
generally  spends  his  Sundays  at  home,  and  often 
the  day  before  and  the  day  after.  He  is,  however, 
seldom  absent  from  the  legislative  sessions.  Public 
sentiment  is  against  it,  and  the  legal  provision  for  his 


OF  THE   LEGISLATURE  335 

expenses  makes  constant  attendance  possible  for  the 
poorest. 

Of  the  lesser  American  republics,  several  have  fol- 
lowed the  example  of  the  United  States. 

Mexico,  in  her  Constitution  of  1859  (Tit.  VI.,  Art. 
1 20),  provides  that  the  members  of  the  Chamber  of 
Deputies  shall  receive  a  compensation  for  their  ser- 
vices, which  they  may  not  renounce.  It  is  to  be 
fixed  by  law,  prospectively  only,  and  paid  from  the 
federal  treasury.1  Senators  are  to  be  paid,  if  at  all, 
by  the  States  which  send  them. 

The  practice  in  the  British  colonies  differs  widely. 

In  Australia  a  salary  of  $1,500  is  allowed  by  the 
leading  provinces  to  members  of  the  lower  house; 
those  of  the  upper  are  sometimes  paid  less,  because 
they  need  it  less.2  Canada  confines  herself  to  allowing 
a  "  sessional  indemnity."  In  the  Bahamas  no  com- 
pensation is  allowed,  but  citizens  of  New  Providence 
may  be  chosen  as  the  representatives  of  other  islands, 
and  often  are ;  the  result  of  which  has  been  greatly  to 
strengthen  the  predominance  of  Nassau  in  the  affairs 
of  the  government. 

Sweden  has  adopted  the  Belgian  system ;  paying 
the  members  of  her  lower  house  of  Parliament,  but 
not  those  of  the  upper  house. 

1  Annals   of    the  American   Academy  of    Political   and   Social 
Science,  ii.  44.     Colombia,  in  her  Constitution  of  1886  (Art.  112), 
repeats  the  provision  against  retrospective  increases  of  salaries. 

2  New  Zealand  pays  ^240  a  year  to  those  of  the  lower  house, 
and  only  ^150  to  those  of  the  upper. 


336  SALARIES   FOR   MEMBERS 

The  Swiss  Federal  Assembly,  while  leaving  each 
canton  to  pay  its  own  representatives  in  the  Council 
of  States,  follows  the  general  rule  of  our  American 
States,  by  giving  each  delegate  to  the  lower  house 
a  certain  sum  ($4)  for  each  day's  attendance,  to- 
gether with  a  mileage  allowance  for  his  travelling 
expenses.1 

This  is  probably  sufficient  for  any  legislative  assem- 
bly, under  a  republican  form  of  government,  whose  an- 
nual session  is  short,  and  whose  members  are  not  too 
distant  from  their  homes  to  prevent  them  from  mak- 
ing frequent  visits  there,  and  so  retaining  some  real 
hold  upon  their  private  affairs.  It  has  worked  well 
in  this  country,  and  will  in  any  where  the  honor  and 
the  opportunity  which  office  gives  are  its  main 
attractions. 

These  are  at  their  best  in  the  United  States.  Here 
is  the  only  land  in  which  a  civilized  and  educated 
people  are  building  up  new  political  institutions  to 
suit  themselves.  Australia  comes  near  it;  but 
Australia  is  subject  to  the  British  Empire,  and  to  a 
parliament  in  which  she  has  no  representation.  Japan 
comes  near  it ;  but  Japan  is  still  subject  to  a  sovereign 
who  has,  in  theory  and  form  at  least,  most  of  the 
powers  of  the  Roman  Emperor. 

Every  American  citizen  is  engaged  in  a  grand  ex- 
periment —  that  for  which  Washington  declared  it 
was  his  main  purpose  in  accepting  the  Presidency  to 
secure  a  fair  trial,  —  to  determine  "with  what  dose  of 

1  Moses,  on  "Federal  Government  of  Switzerland,"  113.  Until 
1874,  it  was  only  $2.40  a  day.  A  day's  pay  is  docked  for  every  day's 
absence  without  excuse.  Winchester's  "  Swiss  Republic,"  68. 


OF   THE   LEGISLATURE  337 

liberty  man  can  be  trusted  for  his  own  good."  The 
authoritative  leaders  in  this  work  are  our  public  officers 
and,  most  of  all,  our  legislators.  Much  of  the  best 
of  it,  no  doubt,  is  done  by  private  individuals,  in  the 
press  and  on  the  platform,  or  in  drawing  and  urging 
bills  for  legislatures  to  pass.  But  such  men  are  labor- 
ing for  others  to  reap.  Nor  at  most  can  they  do 
more  than  propose  the  form  of  laws  and  institutions. 
They  must  pass  them  over  to  others  for  the  final 
touch  and  the  last  word.  Seldom  can  they  link  their 
names  to  them  in  history.  Often  must  they  see  them 
fail  for  want  of  intelligent  support,  or  turned  to  folly 
by  some  hasty  amendment. 

The  American  legislator  is  tied  down  to  no  theory 
of  political  administration.  His  constituents  expect 
him  to  add  and  to  improve;  not  so  much  to  hold 
fast  to  what  is  good  as  to  make  what  is  good  better, 
and  to  state  it  better.  The  growing  tendency  towards 
codification  necessarily  increases  his  work  and  also 
his  possibilities  of  personal  distinction.  He  is  a 
builder,  and  what  he  builds  may  set  the  fashion  for 
other  States  and  other  times. 

The  architect  who  planned  the  cathedral  of  Co- 
logne, though  he  might  die  before  the  foundations 
were  fully  laid,  could  count  on  the  completion  of  the 
great  structure  in  some  distant  age,  in  exact  accord- 
ance with  his  original  design,  for  he  dealt  with  the 
immutable  principles  of  an  ideal  science.  But  in 
government  no  principles  are  immutable,  —  none,  at 
least,  which  men  have  thus  far  put  in  form.  Gothic 
architecture  can  be  stated  in  stone,  but  political 
science  must  be  stated  in  the  changing  speech  of 

22 


338  SALARIES   FOR   MEMBERS 

men,  and  political  institutions  shaped  by  ever-mov- 
ing national  characteristics.  To  one  whose  station 
puts  it  in  his  power,  without  abandoning  his  ordinary 
means  of  livelihood,  to  share  and  direct  in  such  a 
work,  no  reward  ought  to  be  needed  that  ambition 
does  not  supply. 

No  doubt  there  are  enough  who  seek  a  seat  in  the 
legislature  from  motives  very  different,  and  make  the 
want  of  a  salary  an  excuse  for  selling  their  vote  or 
petty  pilfering  from  the  public  treasury.  There  have 
been  representatives  of  this  description  both  at  Wash- 
ington and  our  State  capitals,  who  have  trafficked  in 
public  documents,  and  carried  home  enough  of  pens 
and  paper,  inkstands  and  portfolios,  twine  and  pocket- 
knives,  from  their  desks  to  stock  a  country  store.  It 
is  not  long  since  a  Western  congressman  declared 
that  he  had  been  able  to  save  his  entire  salary  by  sell- 
ing his  stationery  supplies  to  pay  part  of  his  board 
bill,  and  meeting  the  rest  from  the  difference  between 
his  mileage  and  his  actual  travelling  expenses. 

There  are,  on  the  other  hand,  many  of  our  best 
citizens  who  have  no  time  that  they  can  afford  to  give 
to  the  public,  and  are  thus  shut  out  of  our  legisla- 
tures, to  make  room  for  richer  and  weaker  men. 
The  description  of  the  Senate  of  the  United  States 
as  a  club  of  millionaires  has  enough  truth  in  it  to 
make  the  jest  a  bitter  one.  The  salary  of  a  senator 
is  inadequate  to  meet  the  expense  of  housekeeping 
at  Washington  in  the  style  usual  in  the  higher  official 
circles  to  which  he  belongs.  Nor,  if  he  is  content  to 
live  at  a  boarding-house  or  hotel,  can  he  lay  by  enough 
to  help  him  materially  after  his  term  of  office  has  ex- 


OF   THE   LEGISLATURE  339 

pired,  in  gaining  a  proper  start  in  whatever  business 
he  may  find  open  to  him.  One  of  the  seven  senators 
who  saved  the  nation  from  a  grave  reproach  by 
defeating  the  conviction  of  President  Johnson,  when 
impeached  for  defending  what  he  deemed  the  consti- 
tutional prerogatives  of  the  executive  against  con- 
gressional encroachment,  and  who  lost  his  re-election 
by  it,  was,  a  few  years  ago,  supporting  himself  as  a 
compositor  in  a  printing-office.  l 

But  this  is  a  difficulty  inherent  in  the  practical 
administration  of  republican  government  in  a  coun- 
try without  the  traditions  of  a  court.  What  salaries 
are  given  will  not  be  very  far  above  what  is  com- 
monly earned  in  an  ordinary  business  pursuit.  In 
most  of  the  States,  even  these  salaries  for  the  higher 
executive  and  judicial  officers  are  felt  to  be  a  con- 
siderable burden  on  the  treasury,  and  the  inferior 
ones  are  largely  compensated  by  fees  paid  by  those 
for  whom  they  are  called  upon  to  render  service. 
This  system  often  leads  to  absurd  results.  A  clerk 
of  court  or  the  sheriff  in  attendance  may  thus  receive 
twice,  and  sometimes  ten  times,  the  salary  of  the 
judge.  But  the  foundation  on  which  it  rests,  that  a 
man's  pay  should  be  proportioned  to  his  work  and 
come  from  his  work,  is  in  accordance  with  American 
ideas.  For  legislation  no  fees  can  be  safely  paid  to 
the  legislators,  and  if  there  were  no  other  reason  for 
denying  them  a  salary  in  the  ordinary  State,  their 
number  would  be  a  sufficient  one.  Any  salary  that 
could  be  deemed  an  adequate  remuneration  for  the 

1  This  was  Senator  Ross  of  Kansas.  President  Cleveland  came 
to  his  relief  by  giving  him  an  appointment  as  a  territorial  governor. 


340  SALARIED   LEGISLATURES 

time  spent,  when  multiplied  by  one,  two,  or  three 
hundred,  would  amount  to  a  sum  too  large  to  be 
added  to  the  annual  budget  without  the  strongest  pro- 
test from  those  on  whom  the  new  burden  would  fall. 

The  rule  of  confining  salaries  to  an  indemnity  for 
the  expenses  ordinarily  incurred  rests,  therefore,  upon 
solid  foundations.  The  extension  of  the  principle  of 
federal  government  will  tend  to  relax  it  in  the  case 
of  the  great  powers,  as  it  has  already  in  the  case  of 
the  United  States.  The  influence  of  the  large  capi- 
talists and  corporations,  on  the  other  hand,  will 
be  exerted  towards  restricting  salaries  or  excluding 
them  altogether.  The  absence  of  remuneration  is  the 
least  objectionable  form  of  a  property  qualification  for 
office ;  and  the  rich  prefer  to  be  governed  by  the  rich. 

I  venture  the  prediction  that  half  of  the  twentieth 
century  will  not  pass  away  before  England  provides 
for  the  expenses  of  the  members  of  her  House  of 
Commons.  She  would  have  done  so  before  France, 
had  her  civil  war  not  been  before  that  of  France. 
Governments  are  like  railroads:  they  must  all,  in 
course  of  time,  pass  through  a  process  of  foreclosure 
and  reorganization.  The  old  management  is  set 
aside,  and  the  plant  put  in  new  hands  to  be  worked 
by  new  methods.  The  Stuart  management  was  fore- 
closed by  the  English  people  a  century  before  the 
French  Revolution.  The  Hanoverian  line  came  in 
before  the  theory  of  modern  government  had  been 
evolved.  Its  quiet  rule  can  be  adapted  to  the  new 
form  which  society  is  assuming,  without  a  new  fore- 
closure ;  but  the  process,  though  slower,  will  be  not 
less  sure. 


CHAPTER  XII 

PERMANENT  COURTS   OF  INTERNATIONAL 
ARBITRATION 

IT  was  one  of  Matthew  Arnold's  fine  sayings  that 
two  things  govern  the  world,  Force  and  Right, 
—  Force  till  Right  is  ready. 

Right  has  already  displaced  force  as  the  real  basis 
and  criterion  of  authority  in  the  government  of  every 
civilized  country.  If  the  sovereign  power  is  in  the 
hands  of  an  absolute  monarch,  he  claims  it  only  by 
"  hereditary  right,"  or  popular  choice,  and  appeals 
to  law  as  its  source  and  sanction.  The  principles  of 
jurisprudence,  also,  recognized  as  governing  the  rela- 
tions of  private  citizens  to  each  other,  are  substan- 
tially the  same  in  all  the  leading  nations  of  the  world ; 
and  they  are  the  same  because  they  are  derived  from 
the  conception  of  the  equality  of  right.  Altruism 
has  become  an  accepted  standard  of  human  conduct. 
Some  still  deny  the  fatherhood  of  God,  but  no  one 
disputes  the  brotherhood  of  man.  That  selfish  spirit 
which  once  made  every  nation  call  all  foreigners 
either  enemies  or  barbarians  has  shrunk  away  to  the 
furthest  outskirts  of  civilization. 

These  upward  tendencies  of  the  human  race  may 
be  said  to  have  become  first  discernible  as  world 
forces  in  the  control  of  social  movements  shortly 
after  the  era  of  the  Reformation. 


342  PERMANENT   COURTS  OF 

The  Roman  Catholic  church  had  before  interposed 
a  power  between  God  and  man,  and  between  nation 
and  nation,  which  had  been  necessarily  antagonistic 
to  the  development  of  such  ideas.  Ecclesiastical 
power  had  often  had  little  to  do  with  right ;  and  men 
knew  it.  God  was  the  God  of  the  Catholic,  as  Jeho- 
vah had  been  called  the  God  of  Israel ;  not  the  father 
and  lover  of  all.  It  was  not  until  1537  that  the  papal 
bull  was  published  which  declared  the  natives  of 
America  to  be  rational  beings.  The  sixteenth  cen- 
tury began  with  the  attacks  of  Luther  on  the  usurped 
position  of  the  church  as  the  central  power  on  earth, 
and  of  Copernicus  on  the  usurped  position  of  the 
earth  as  the  centre  of  the  universe.  It  was  a  logical 
consequence  of  these  new  views  of  things  that  na- 
tions should  begin  to  assume  new  relations  to  each 
other.  The  foundations  of  human  philosophy  had 
been  moved.  The  only  form  of  ecumenical  human 
authority  had  been  swept  away.  Something  must 
be  brought  forward  to  replace  what  had  been  thrown 
aside,  something  better  and  higher. 

The  seventeenth  century  responded  with  the  prop- 
osition of  Henry  IV.  of  France,  made  in  1609,  to 
establish  the  Christian  Republic  of  Europe.  It  was 
to  consist  of  fifteen  States,  each  to  be  of  as  nearly  the 
same  size  and  power  as  the  others,  or,  should  Russia 
accede  to  it,  of  sixteen.  The  Turks  were  to  be 
driven  back  into  Asia.  A  diet  of  four  representatives 
from  each  State,  to  be  constituted  by  the  name  of  the 
Senate  of  the  Christian  Republic,  was  to  regulate  the 
relations  between  the  constituent  powers,  raise  a 
sufficient  military  force  to  preserve  the  peace  of 


INTERNATIONAL   ARBITRATION  343 

Europe,  and  make  an  equitable  apportionment  of  the 
necessary  expense. 

The  death  of  Henry  during  the  following  year,  and 
the  accession  of  a  child  to  the  throne  as  his  successor, 
left  France  in  no  position  to  press  this  scheme; 
but  it  was,  no  doubt,  one  of  the  things  that  led 
Grotius  to  prepare  his  work  on  the  "  Law  of  War  and 
Peace,"  which  was  the  real  beginning  of  international 
law.  This  was  published  in  1625,  soon  after  Louis 
XIII.  had  come  of  age  ;  and  in  an  elaborate  dedication 
of  the  treatise  to  the  young  king,  Grotius  declares 
that  all  Christian  peoples  demand  of  him  no  less  than 
that,  under  his  lead,  wars  may  be  everywhere  extin- 
guished, and  peace  return  to  States  and  to  the 
Church  alike.  On  the  foundations  thus  laid  there 
has  been  since  built  up  by  slow  degrees,  during  a 
period  of  nearly  three  centuries,  a  new  science. 

It  is  a  science  that  it  would  have -been  impossible 
for  men  to  comprehend  prior  to  the  Reformation. 
Until  Christianity  took  possession  of  the  Roman 
Empire  and  of  the  thought  of  the  world,  nations 
occupied  a  position  of  entire  estrangement  from,  if 
not  of  hostility  to  each  other.  After  the  Roman 
church  rose  into  power  and  the  papacy  was  developed, 
it  assumed  the  position  of  the  universal  lawgiver  and 
judge.  A  general  council  of  the  church  was,  in 
truth,  a  council  of  the  world,  and  spoke  with  a 
world-wide  authority. 

That  international  law  which  has  taken  the  place 
in  Christendom  of  the  will  of  the  church,  does  not 
profess  to  have,  of  itself,  any  original  and  binding 


344  PERMANENT   COURTS   OF 

force.  It  is  not  law,  in  any  sense  in  which  that  term 
is  ordinarily  used  in  civil  government ;  but  it  rests  on 
the  same  foundations  as  municipal  law,  —  the  consent 
of  the  governed.  The  people  in  every  community 
make  their  own  law ;  and  most  of  it  they  make  from 
day  to  day  by  their  habits  of  life  and  business  usages. 
So  have  civilized  nations  generally  come,  as  a  result 
of  their  ordinary  intercourse,  to  agree  on  certain  rules 
of  conduct  to  govern  their  mutual  relations.  Here, 
however,  we  must  stop  to  mark  a  point  of  essential 
difference.  Each  community  can  enforce  its  own 
laws  on  its  own  people,  and  on  all  who  are  found 
within  its  territory.  It  may  and  does  adopt  interna- 
tional law  as  a  part  of  its  municipal  law,  and  enforce 
it  in  the  same  way.  But  there  is  no  common  author- 
ity to  compel  the  observance  of  international  law  by 
or  between  independent  nations. 

The  decisions  of  courts  of  justice  in  rude  ages,  and 
in  uncivilized  countries  in  our  own  time,  are  little 
regarded,  except  as  obedience  is  exacted  by  the 
strong  hand.  Under  such  governments,  however, 
as  those  to  which  we  are  subject,  the  judgments  of 
courts  are  commonly  executed  without  any  resort  to 
compulsory  process.  Public  opinion  demands  that 
they  be  respected,  and  the  services  of  the  sheriff  are 
not  required. 

If,  then,  there  is  such  a  thing  as  a  public  opinion 
common  to  several  independent  nations,  why  may  it 
not  have,  for  all  practical  purposes,  the  same  effect, 
in  producing  acquiescence  in  results  reached  by 
international  tribunals  on  principles  of  international 
law? 


INTERNATIONAL  ARBITRATION  345 

The  phrase  "  republic  of  letters  "  has  long  been 
a  familiar  one.  It  recognizes  no  local  or  national 
boundaries ;  it  expresses  the  community  of  thought 
and  feeling  which  exists  between  all  educated  men. 
Has  there  not  come  to  be,  is  there  at  least  not 
coming  to  be,  a  similar  unity  of  conviction  among  the 
leading  nations  of  the  world  as  to  standards  of  national 
duty  ? 

Grotius  said  1  that  there  was  no  room  for  decisive 
and  final  arbitration  between  kings  or  peoples, 
because  there  could  be  no  superior  power  to  create 
or  to  dissolve  an  obligation  under  such  conditions. 
There  was  none  in  his  day;  but  he  has  helped  to 
make  one  in  ours.  His  discussions  and  propositions 
have  not  only  led  to  something  like  a  systematic  code 
of  international  law,  but  to  a  certain  consensus  as  to 
international  morals.  Plain  dealing  is  now  recog- 
nized as  the  best  mode  of  diplomatic  negotiation. 
No  Machiavelli,  and,  we  may  even  say,  no  Talleyrand 
would  now  be  tolerated  at  the  head  of  any  English, 
French,  or  German  Cabinet.  The  greater  participa- 
tion of  the  people  in  the  government,  the  publicity 
given  to  ministerial  despatches  and  parliamentary 
debates  by  the  press  and  the  ocean  cable,  have 
changed  the  face  of  international  politics  within  fifty 
years.  They  are  unifying  mankind.  As  we  read 
our  morning  newspapers,  we  feel  the  pulse  beat  of  the 
world ;  and  it  is  one  and  the  same. 

What  is  now  so  well  known  as  international  arbitra- 
tion is  largely  of  American  origin.  It  has  hitherto 

1  Dejure  Belli  et  Pads,  3  :  20,  46. 


346  PERMANENT   COURTS   OF 

consisted  of  proceedings  before  tribunals  organized  to 
settle  a  controversy  after  it  has  arisen.  Over  a  hun- 
dred matters  of  difference  between  nations  have  been 
thus  adjusted  during  the  nineteenth  century,  each  of 
which  might  otherwise  have  been  an  occasion  of  war. 
We  have  been  parties  to  so  many  of  these  hearings 
that  we  are  in  a  position  to  judge  with  some  degree 
of  assurance  as  to  their  merits  and  their  defects. 
Both  are  great.  No  arbitration  agreement,  made 
after  a  particular  matter  of  dispute  has  arisen,  can  be 
drawn  quite  as  unreservedly  in  the  interests  of  justice 
as  one  made  before.  The  mere  words  used  to  state 
the  question  give  an  opportunity  for  equivocation. 
In  the  selection  of  arbitrators  each  party  is  certain 
to  favor  those  whom  it  may  think  most  likely  to  con- 
cur in  its  own  views.  In  the  choice  of  the  place  for 
the  hearing  there  will  be  some  thought  of  the  state  of 
public  sentiment  there,  in  circles  into  which  the 
arbitrators  may  be  thrown.  On  the  other  hand,  the 
best  men  to  decide  a  question  of  compensation 
for  property  unjustly  seized  might  not  be  the  best 
to  pass  upon  a  disputed  boundary,  nor  at  all  fit  to 
decide  upon  such  a  matter  as  the  proper  limits  of  the 
right  of  search,  or  the  true  meaning  of  some  expres- 
sion in  a  treaty. 

A  permanent  international  court  would  have 
several  obvious  advantages  over  any  board  of  arbitra- 
tion, so  constituted  for  a  single  occasion. 

As  it  would  precede,  so  it  would  tend  to  prevent  the 
occurrence,  of  any  serious  controversy.  The  knowl- 
edge of  each  party  to  the  treaty,  by  which  it  was 


INTERNATIONAL   ARBITRATION  347 

established,  that  it  was  in  existence  and  would  have 
jurisdiction  to  settle  the  dispute,  if  it  were  not  settled 
by  the  nations  concerned,  for  themselves,  would  be  a 
strong  incentive  toward  a  voluntary  adjustment. 

In  the  absence  of  such  a  court  there  would  be 
always  a  right  to  reject  any  offer  of  arbitration ;  and 
it  would  be  a  right  often  exercised,  particularly  by 
the  party  in  the  wrong.  And  even  if  there  were  a 
treaty  providing  for  the  reference  of  any  controversies 
that  might  arise  to  arbitrators  to  be  chosen  for  the 
purpose,  it  would  be  a  far  less  manifest  breach  of 
duty  to  refuse  to  join  in  selecting  arbitrators,  or  to 
postpone  action  in  that  direction  until  it  became  too 
late  to  avoid  a  conflict  of  arms,  than  it  would  be  to 
refuse  to  respect  the  summons  of  a  tribunal  already 
constituted  for  the  disposition  of  precisely  such  a 
case. 

There  was  a  treaty  between  Prussia  and  Denmark, 
in  1863,  which  provided  for  the  settlement  by  arbi- 
tration of  such  disputes  as  might  arise  between  those 
powers.  One  did  arise  in  relation  to  the  Schleswig- 
Holstein  succession,  but  Prussia  found  war  more  to 
her  purpose  than  arbitration.  War  followed,  and  the 
weaker  power  lost  everything  that  was  at  stake. 

Permanent  judges  would  also  have  a  position  enti- 
tling their  decisions  to  far  more  respect  than  that 
likely  to  be  accorded  to  any  temporary  arbitrators. 
There  would  be  a  certain  unity  to  their  mode  of  pro- 
cedure, a  certain  consistency  in  their  application  of 
legal  principles.  They  would  be  driven  by  the 
strongest  motives  of  ambition  as  well  as  of  duty  to 
give  the  closest  study  and  attention  to  whatever  came 


348  PERMANENT   COURTS   OF 

before  them,  and  to  set  forth  the  reasons  of  their 
judgments  in  a  way  to  carry  conviction  at  least  to 
unprejudiced  minds.  They  must  thus  gradually  de- 
velop a  true  system  of  international  jurisprudence, 
each  rule  of  which  would  rest  upon  the  general 
approval  of  civilized  nations;  for  without  that  no 
rule  they  framed  could  have  any  enduring  vitality. 

Will  the  time  ever  come  when  it  will  be  possible  to 
establish  such  a  tribunal?  I  believe  that  it  has  come, 
so  far  as  Great  Britain  and  the  United  States  are 
concerned. 

The  project  of  constituting  an  international  court 
with  jurisdiction  of  differences  between  all  the  great 
powers  of  Europe  received  the  countenance  of  Leib- 
nitz, Kant,  Lamartine,  and  Bentham;  but  no  great 
and  general  revolution  in  methods  of  government  has 
ever  been  accomplished  in  a  sudden  way.  Mankind 
advances  only  step  by  step,  and  irregularly  at  that. 
The  successful  experiment  in  politics  is  that  which  is 
made  under  the  most  favorable  conditions.  The  wel- 
fare of  the  race  is  too  deeply  concerned  in  any  attempt 
to  substitute  judicial  decision  for  military  power  in 
international  disputes,  to  justify  taking  any  risk  not 
absolutely  necessary. 

The  courts  of  England  and  the  United  States 
already  occupy,  in  respect  to  almost  all  matters  of 
municipal  and  of  private  international  law,  the  same 
positions.  As  was  said  by  the  Supreme  Court  of 
Errors  of  Connecticut,  in  a  recent  decision,1  which 
affirmed  the  conclusiveness  in  an  American  court  of 

1  Fisher  v.  Fielding,  vol.  67,  Connecticut  Law  Reports,  91. 


INTERNATIONAL   ARBITRATION  349 

a  judgment  against  an  American,  fairly  obtained  in 
an  English  court :  — 

"  They  are  engaged  in  administering  the  same  system  of 
jurisprudence,  and  are  bound  together  by  common  institu- 
tions and  modes  of  thought,  no  less  than  by  sharing  the 
same  language  and  the  same  history." 

The  forms  of  judicial  procedure  now  in  use  at 
Chicago  are  more  like  those  of  England  in  the  sev- 
enteenth century  than  those  that  are  at  present 
followed  at  London;  and  on  the  other  hand,  the 
simplification  of  legal  pleadings  which  now  obtains  in 
the  English  courts  had  an  American  origin.  The 
decisions  of  English  courts  and  the  works  of  English 
jurists  are  constantly  cited  as  authorities  before  our 
tribunals,  and  similar  respect  is  paid  by  their  judges 
to  the  opinions  of  Marshall,  Story,  and  Kent. 

In  both  countries,  also,  the  general  attitude  of  the 
people  towards  the  judicial  tribunals  is  the  same. 
They  recognize  and  confide  in  them  as  courts  of 
their  own  making,  and  their  best  defences  against 
any  act  of  executive  or  legislative  injustice.  They 
are  prepared  in  advance  to  acquiesce  in  the  decisions 
of  those  of  last  resort,  and  to  believe  that  they  are 
such  as  law  and  right  demand.  For  nearly  three 
generations  these  two  nations  have  been  at  peace 
with  each  other,  and  engaged  in  the  closest  com- 
mercial intercourse,  not  only  by  sea,  but  across  a 
frontier  stretching  for  three  thousand  miles  or  more 
across  the  continent.  No  two  powers  in  the  world 
have  ever  before  been  in  so  fair  a  position  to  try  this 
experiment  of  an  international  court. 


350  PERMANENT   COURTS   OF 

The  Pan-American  Congress,  held  at  Washington 
in  1890,  formulated  a  project  for  a  general  treaty  of 
arbitration  between  all  the  republics  upon  the  West- 
ern continent.  Its  first  article  declared  that  arbitra- 
tion was  adopted  as  a  principle  of  American  Inter- 
national Law,  and  it  proceeded  to  make  a  resort  to 
it  compulsory  as  to  every  question  of  difference  be- 
tween any  of  these  powers,  save  such  that  the  deci- 
sion, in  the  judgment  of  one  of  the  parties  involved, 
might  imperil  its  independence.  In  that  case  arbi- 
tration was  to  be  optional  as  to  that  party,  but  oblig- 
atory as  to  the  other.  The  choice  of  arbitrators  was 
to  be  made  for  each  particular  controversy  as  it  might 
arise.  Any  nation  in  the  world  was  to  have  the  abso- 
lute right  to  become  a  party  to  the  treaty,  at  any 
time,  by  simply  signing  a  copy  of  it,  and  depositing 
this  instrument  with  the  government  of  the  United 
States. 

This  measure  was  obviously  ill-considered  and  pre- 
mature. It  failed  to  receive  the  approval  of  any  of 
the  republics  in  the  Congress,  and  has  been  laid  upon 
the  shelf  as  another  example  of  the  folly  of  endeav- 
oring to  bring  different  forms  of  civilization,  and  dif- 
ferent types  of  national  character,  into  permanent 
political  union,  upon  an  equal  footing. 

While  this  Congress  was  in  session,  the  Congress 
of  the  United  States,  by  concurrent  resolution,  re- 
quested the  President  "  to  invite  from  time  to  time, 
as  fit  occasions  may  arise,  negotiations  with  any  gov- 
ernment with  which  the  United  States  has  or  may 
have  diplomatic  relations,  to  the  end  that  any  differ- 


INTERNATIONAL   ARBITRATION  351 

ences  or  disputes  arising  between  the  two  govern- 
ments which  cannot  be  adjusted  by  diplomatic  agency 
may  be  referred  to  arbitration,  and  be  peaceably 
adjusted  by  such  means." 

Three  years  later,  the  British  House  of  Commons 
passed  a  resolution  declaring  its  sympathy  with  the 
purpose  of  this  overture,  and  its  hope  that  it  might 
be  accepted  by  Great  Britain.  The  Olney-Pauncefote 
treaty  followed  in  1896.  As  compared  with  the  pre- 
tentious generalizations  of  the  Pan-American  project, 
it  shows  the  difference  between  political  speculation 
and  practical  statesmanship.  Its  failure,  from  the 
action  of  our  Senate,  is  of  less  significance  in  the  his- 
tory of  nations  than  the  fact  that  the  executive  powers 
of  both  nations  were  able  to  agree  upon  it. 

Had  it  stated  in  terms  what  perhaps  may  be  read 
between  the  lines,  that  a  court  of  permanent  judges 
was  contemplated,  its  fate  might  possibly  have  been 
different,  for  many  of  the  objections  urged  against  the 
scheme  of  procedure  would  then  have  fallen  to  the 
ground.  Had  it  gone  farther  and  provided  for  a 
court  all  whose  judges  should  be  either  English  or 
Americans,  one  vital  amendment  upon  which  the 
Senate  insisted  would  certainly  have  been  avoided. 

There  were  obvious  reasons  for  questioning  the 
wisdom  of  resorting  to  a  foreign  sovereign  for  the 
appointment  of  an  umpire.  He  would  certainly  not 
select  either  a  subject  of  Great  Britain  or  a  citizen  of 
the  United  States,  and  the  umpire  would  therefore  be 
one  trained  under  different  legal  and  political  institu- 
tions, and  out  of  tune,  so  to  speak,  with  his  fellow 
judges  in  respect  to  habits  of  weighing  evidence  and 


350  PERMANENT   COURTS   OF 

The  Pan-American  Congress,  held  at  Washington 
in  1890,  formulated  a  project  for  a  general  treaty  of 
arbitration  between  all  the  republics  upon  the  West- 
ern continent.  Its  first  article  declared  that  arbitra- 
tion was  adopted  as  a  principle  of  American  Inter, 
national  Law,  and  it  proceeded  to  make  a  resort  to 
it  compulsory  as  to  every  question  of  difference  be- 
tween any  of  these  powers,  save  such  that  the  deci- 
sion, in  the  judgment  of  one  of  the  parties  involved, 
might  imperil  its  independence.  In  that  case  arbi- 
tration was  to  be  optional  as  to  that  party,  but  oblig- 
atory as  to  the  other.  The  choice  of  arbitrators  was 
to  be  made  for  each  particular  controversy  as  it  might 
arise.  Any  nation  in  the  world  was  to  have  the  abso- 
lute right  to  become  a  party  to  the  treaty,  at  any 
time,  by  simply  signing  a  copy  of  it,  and  depositing 
this  instrument  with  the  government  of  the  United 
States. 

This  measure  was  obviously  ill-considered  and  pre- 
mature. It  failed  to  receive  the  approval  of  any  of 
the  republics  in  the  Congress,  and  has  been  laid  upon 
the  shelf  as  another  example  of  the  folly  of  endeav- 
oring to  bring  different  forms  of  civilization,  and  dif- 
ferent types  of  national  character,  into  permanent 
political  union,  upon  an  equal  footing. 

While  this  Congress  was  in  session,  the  Congress 
of  the  United  States,  by  concurrent  resolution,  re- 
quested the  President  "  to  invite  from  time  to  time, 
as  fit  occasions  may  arise,  negotiations  with  any  gov- 
ernment with  which  the  United  States  has  or  may 
have  diplomatic  relations,  to  the  end  that  any  differ- 


INTERNATIONAL   ARBITRATION  351 

ences  or  disputes  arising  between  the  two  govern- 
which  cannot  be  adjusted  by  diplomatic  agency 
be  referred  to  arbitration,  and  be  peaceably 

by 


Three  years  later,  the  British  House  of  Commons 

purpose  of  this  oveituic,  and  its  hope  that  it  might 
be  accepted  by  Great  Britain.  The  Olney-Panncefote 
treaty  followed  in  1896.  As  compared  with  the  pre- 
tentious generalizations  of  the  Fan-American  project, 
i:  =:  :  r  :hr  i.'rVtrer.re  ber-etr.  ;:".:: ::i".  ^±2-.:^  — 
and  practical  statesmanship.  Its  failure,  from  the 
action  of  our  Senate,  is  of  less  significance  in  the  his- 
toiy  of  nations  than  the  fact  that  the  executive  powers 
of  both  nations  were  able  to  agree  upon  it- 
Had  it  stated  in  terms  what  perhaps  may  be  read 
between  the  fines,  that  a  court  of  permanent  judges 
was  contemplated,  its  fate  might  possibly  have  been 

urrtf  Lrii"5t  the 


_  _*    .^_-_-_r   . » -     ^. .  -    . "  -     . "._  ^  __     " _     .*  -  "       _     .        --^. 

ground.     Had  it  gone  farther  and  provided  for  a 
court  afl  whose  judges  should  be  either  English  or 

Senate  insisted  would  certainly  have  been  avoided. 
There  tvere    obviooi    resins  for    ]nestioning  the 
of  resorting  to  a  foreign  sovereign  for  the 
of  an  umpire.     He  would  certainly  not 
select  either  a  subject  of  Great  Britain  or  a  citizen  of 

j|»_  _    fT     ?•  -  f   f^m  --igi-,       — ^  J   gf,  „  -,-,;_„    ^^^--l-f    «f ,  m^ifoa^i    tvn 

_.r    , rZ,   ^Iltrr — ±   ' --- --        -    -  - 

1  ^ — **  ^.     ~~  ~*^  *~  **    ~  -*  ^.    ^.r"n  *"  "    T  r^~.  i  *"  5 1.~  *  -i  ~ 
.r.z,   c  -'    -~  tjr.t.   s:   t:    scti  :     -Mr.  r.is   :...:" 
>r.  rzriii:  *:  .".11:1=  i:  "t  rr.  r. r  tv;_tr. :t  L'.I 


354  PERMANENT   COURTS   OF 

legal  and  judicial  training.  But  the  English  and 
American  people  are  accustomed  to  see  their  judges 
decide  controversies  of  every  nature,  and  have  found 
that  they  are  generally  competent  for  the  task.  No 
questions  of  an  international  character  could  be  pre- 
sented more  difficult  or  more  important  than  those 
passed  upon  by  the  Supreme  Court  of  the  United 
States  in  respect  to  the  right  of  President  Lincoln  to 
proclaim  a  blockade  of  the  Southern  ports  in  I86I,1  or 
that  disposed  of  by  the  English  Court  of  Criminal 
Appeal  in  determining  the  distance  from  its  shores 
within  which  it  could  exercise  criminal  jurisdiction 
over  those  on  board  a  foreign  ship.2 

Trials  should  take  place,  unless  the  court  otherwise 
ordered,  in  the  country  against  which  its  jurisdiction 
was  invoked,  following  the  maxim,  "  Actor  sequitur 
forum  rei"  If  the  matter  were  one  submitted  by  the 
joint  action  of  both  countries,  the  hearing  should  be 
had,  in  the  absence  of  an  agreement  between  them, 
wherever  the  court  might  direct. 

All  cases  heard  should  be  made  the  subject  of  a 
brief  official  report,  published  under  the  direction  of 
the  court  in  such  a  form  as  to  be  one  of  a  series  of 
similar  reports,  uniform  in  style  and  character.  This 
series  should  be,  in  its  general  features,  similar  to  the 
sets  of  reports  of  cases  decided  in  courts  of  last  resort 
in  England  and  the  United  States,  with  which  the  bar 
and  bench  of  each  country  are  familiar.  The  genius 
of  Anglo-American  jurisprudence  is  respect  for  pre- 

1  Prize  Cases,  2  Black's  Reports,  635. 

2  Regina  v.  Keyn,  13  Cox  Cr.  Cases,  403 ;  Law  Reports,  2  Exch. 
Div.  63. 


INTERNATIONAL  ARBITRATION  355 

cedent,  and  every  volume  of  the  description  indi- 
cated would  furnish  it  new  standing  ground  of  that 
description. 

The  universal  science  of  international  law  would  be 
an  immense  gainer  by  the  growth  of  such  a  body  of 
orderly  jurisprudence,  proceeding  from  the  applica- 
tion of  its  own  principles  by  trained  judges  acting 
with  the  weight  of  public  authority.  For  the  expres- 
sion of  that  common  consent  of  civilized  nations 
upon  which  the  science  has  been  built  up,  the  world 
has  thus  far  been  forced  to  look  to  the  treatises  of 
jurists,  and  official  documents  put  forth  by  particular 
nations  for  particular  purposes  and  for  their  own  pur- 
poses. A  set  of  international  law  reports  of  a  judicial 
character,  if  at  all  worthy  of  the  place  it  filled,  though 
the  product  of  but  two  nations,  could  hardly  fail,  in 
course  of  time,  to  receive  general  acceptance  and  to 
be  quoted  as  of  universal  authority. 

The  ordinary  court  of  justice  prevents  more  law- 
suits than  it  decides.  Those  who  know  that  if  they 
engage  in  controversy,  its  determination  will  belong 
to  another,  proceeding  under  judicial  authority,  are 
apt  to  prefer  an  amicable  settlement.  An  interna- 
tional court  of  standing  jurisdiction,  before  which 
either  of  the  powers  for  which  it  acts  can  always 
summon  the  other,  must,  as  has  been  already  said, 
have  in  some  degree  a  like  deterring  effect.  We  may 
be  sure  that  all  the  arts  and  arguments  of  diplomacy 
would  be  exhausted  before  any  question  in  dispute 
was  submitted  to  it  for  final  adjudication. 

It  is  doubtless  true  that  cases  would  occur  in  which 


356  PERMANENT   COURTS   OF 

anything  approaching  unanimity  in  the  conclusions 
of  such  a  tribunal  could  hardly  be  anticipated.  Espe- 
cially would  this  be  so,  when  the  experiment  was  first 
on  trial,  and  there  were  no  precedents  of  their  own 
making,  to  which  the  attention  of  the  judges  could  be 
turned.  But  they  would  still  have  filled  an  important 
function.  "  The  law's  delays  "  would  have  been 
attained.  The  nations  at  difference  would  have 
accustomed  themselves  to  the  thought  that  their  dis- 
pute was  to  be  peacefully  adjusted.  Any  outbreak  of 
a  war  spirit,  incident  to  the  original  wrong  or  misun- 
derstanding, would  have  spent  its  force,  and  the  way 
would  be  smoothed  towards  a  diplomatic  settlement. 

Had  Spain  responded  favorably  to  the  overtures 
of  the  United  States  in  1890,  and  a  general  treaty  of 
arbitration  then  been  concluded,  providing  for  such 
a  court  as  has  been  the  subject  of  consideration,  the 
events  of  1898  must  have  taken  a  very  different 
shape.  The  question  of  responsibility  for  the  de- 
struction of  the  Maine,  so  far  as  it  might  turn  on  the 
exercise  of  due  diligence  by  the  Spanish  authorities 
in  protecting  the  ship  of  a  friendly  power,  would 
probably  have  fallen  within  the  stipulated  jurisdiction 
of  such  a  tribunal.  If  there  was  room  for  a  differ- 
ence of  opinion  upon  this  point,  long  diplomatic 
negotiations  would  have  followed,  and  however  it 
might  have  been  determined,  the  principal  contro- 
versy, under  those  circumstances,  could  have  had 
comparatively  slight  effect  in  fanning  the  flames  of 
war. 

The  incidents  of  the  Cuban  revolution  of  1895-8 


INTERNATIONAL  ARBITRATION  357 

show  also  the  necessary  limitations  of  all  arbitration 
procedure  between  independent  nations.  Questions 
of  national  policy  and  national  morals  must  be 
decided  in  other  ways.  Perhaps  they  indicate  with 
equal  force  that  the  time  is  yet  far  distant  when  any 
permanent  court  of  international  arbitration  could  be 
wisely  established  between  powers  so  far  apart  in 
their  modes  of  thought  and  standards  of  conduct, 
and  so  impeded  by  differences  of  language  and  laws 
from  coming  to  a  common  understanding  on  any 
point,  as  Spain  and  the  United  States.  Courts  can 
seldom  do  complete  justice  between  parties  who  are 
not  accustomed  to  the  same  general  course  of  legal 
procedure. 

In  stating  the  subject  of  this  chapter  I  have  not 
hesitated  to  employ  a  term  which,  of  late  years,  has 
been  often  used,  though  it  is  certainly  subject  to 
grave  objections  of  form.  It  may  be  truly  said 
that  to  call  any  tribunal  of  the  character  which  has 
been  sketched  a  court  of  arbitration  is  a  misnomer, 
since  it  is  of  the  essence  of  arbitration  that  it  rest 
on  a  voluntary  agreement.  The  objection  is  tech- 
nically sound;  but  what  better  name  can  be  sug- 
gested? We  are  attempting  to  describe  a  new  agency 
of  government,  and  it  is  not  surprising  that  we  find 
no  terms  of  usage  exactly  fitted  to  the  occasion.  It 
is  not,  in  strictness,  a  court,  for  every  true  court  has 
inherent  power  to  enforce  its  own  decrees.  It  is  not, 
in  strictness,  a  board  of  arbitration,  because,  once 
established,  either  of  the  nations  from  whose  joint 
action  it  derives  its  powers,  becomes,  so  far  as  treaty 


358  INTERNATIONAL  ARBITRATION 

obligations  can  avail,  subject  to  its  jurisdiction. 
Under  these  circumstances,  while  it  must  be  con- 
ceded that,  taking  words  in  their  accepted  significa- 
tion, there  is  no  such  thing  as  compulsory  arbitration, 
it  is  no  less  true  that  there  are  no  known  terms  that 
come  nearer  to  the  expression  of  this  new  idea  than 
those  that  make  up  the  phrase  Permanent  Court  of 
International  Arbitration.  It  is  permanent  as  distin- 
guished from  a  tribunal  ad  hoc.  It  is  a  court  as  dis- 
tinguished from  a  board  of  arbitrators  proceeding  by 
their  own  sense  of  what  is  reasonable  and  fair.  It  is 
international,  so  far  as  two  nations  are  concerned.  It 
is  a  proceeding  of  arbitration,  in  so  far  as  it  can  re- 
sult in  no  judgment  which  the  judges  who  render  it 
can  enforce. 


CHAPTER  XIII 

THE  MONROE   DOCTRINE   IN    1898 

ONE  of  the  weakest  of  American  Presidents  will 
be  among  those  who  are  longest  remembered 
in  the  history  of  the  world.  A  few  words  in  the 
annual  presidential  message  sent  to  Congress  in  1823, 
written  by  John  Quincy  Adams,  the  Secretary  of 
State,  and  inspired  by  George  Canning,  the  British 
Secretary  of  Foreign  Affairs,  have  linked  the  name 
of  President  Monroe  forever  to  what  has  become 
one  of  the  fundamental  rules  of  American  public 
law. 

A  strong  man  who  finds  himself  in  a  company 
which  but  for  himself  is  composed  wholly  of  children, 
has  a  certain  responsibility,  from  the  mere  fact  of 
their  presence.  Should  their  safety  be  menaced,  they 
would  naturally  look  to  him  for  protection.  In  some- 
what this  position  the  United  States  found  them- 
selves in  the  first  quarter  of  this  century.  They 
were  the  leading  power  on  the  American  continent. 
Greater  powers  had  had  territorial  possessions  here, 
but  only  one  of  them  continued  to  retain  them. 
Revolutions  had  wrested  those  of  the  others  from 
their  hands,  and  at  the  same  time  and  by  the  same 
cause  there  had  been  changes  in  the  form  of  govern- 


360       THE   MONROE   DOCTRINE   IN    1898 

ment.  Royal  authority  had  given  place  to  repub- 
lican institutions.  The  interests  of  the  Roman 
Catholic  church  had  suffered  by  these  occurrences. 
They  tended  to  weaken  the  foundations  of  monarchi- 
cal institutions  throughout  the  world.  It  was  a  time 
when  matters  of  sentiment  exerted  a  particularly 
strong  influence  in  public  affairs.  Napoleon  had 
recognized  this  force  in  politics,  and  had  used  it 
with  skill.  Upon  his  fall,  the  Czar  of  Russia,  a 
mystic  in  religion,  had  brought  all  the  powers  of 
Europe  except  Great  Britain,  Turkey,  and  the  Pope 
of  Rome,  to  unite  in  a  solemn  covenant  that  in 
dealing  with  their  subjects  and  with  other  nations 
alike,  they  would  be  governed  by  the  rules  of  Chris- 
tian justice  and  charity.  This  agreement,  knitting 
so  many  great  nations  together  into  "  the  Holy  Alli- 
ance," lent  new  weight  to  the  position  of  Spain  in 
South  America.  In  1822  the  United  States  had 
recognized  the  independence  of  her  revolted  colo- 
nies there.  Were  she  to  attempt  to  reduce  them 
to  subjection  again,  and  receive  in  this  the  aid  of 
the  Holy  Alliance,  success  in  South  America  might 
well  lead  her  to  think  of  reasserting  some  of  her 
ancient  rights  in  North  America. 

The  Monroe  doctrine,  as  originally  promulgated, 
had  immediate  reference  to  this  condition  of  things, 
and  this  alone.  But  it  does  not  follow  that  it  means 
no  more  now.  Every  doctrine  of  public  law  which 
has  any  vitality  in  it  is  subject  to  the  law  of  growth. 
The  United  States  were  a  third-rate  power  in  1823. 
They  are  one  of  the  great  powers  of  the  world  in 
1898.  The  other  American  States  meanwhile  have 


THE   MONROE   DOCTRINE   IN    1898        361 

gained  little  in  importance.     They  are  feeble  repub- 
lics, and  we  are  a  strong  one. 

Europe  has  always  recognized  the  right  of  her 
great  powers  to  intervene  in  any  controversy  between 
other  States,  or  in  other  States,  for  the  protection 
of  those  interests  which  are  common  to  all.  Their 
primacy  in  the  "  European  concert  "  is  acknowledged. 
A  narrower  right  of  intervention  is  conceded  by  the 
principles  of  international  law  to  every  nation  in  the 
affairs  of  any  other,  when  their  course  is  such  as 
vitally  to  endanger  the  tranquillity  or  prosperity  of 
the  intervening  power. 

Whatever  rights  of  either  of  these  descriptions 
belong  to  one  or  all  of  the  powers  of  Europe  in 
respect  to  what  passes  on  that  continent,  may  fairly 
be  claimed  by  the  United  States  in  respect  to  what 
passes  on  this  hemisphere.  Our  Federal  union  is 
a  stronger  bond  of  connection  than  any  European 
concert  can  be  between  independent  States.  Peace, 
under  our  republican  institutions,  imposing  on  us, 
as  our  Constitution  does,  serious  obstacles  to  wag- 
ing effective  war,  can  be  best  secured  by  the 
absence  from  this  continent  of  any  monarchical 
powers. 

Great  Britain,  since  the  Monroe  doctrine  was 
formulated,  has  become  substantially  a  republic,  and 
Canada  has  a  form  of  government  differing  little 
from  our  own.  If  we  have  anything  to  fear  from 
the  influence  of  monarchical  institutions,  it  will  come 
from  the  lands  that  lie  south  of  us. 


362        THE   MONROE   DOCTRINE   IN    1898 

At  the  time  when  the  Monroe  doctrine  was  an- 
nounced, a  proposition  was  made  for  the  convoca- 
tion of  a  Pan-American  Congress  to  construct  a 
continental  system.  Colombia  and  Chili  had  already 
acceded  to  it.  Clay  was  its  foremost  advocate  in 
the  United  States.  Jefferson  gave  it  his  countenance. 
"  Our  first  and  fundamental  maxim,"  he  wrote  when 
consulted  by  President  Monroe  as  to  the  propriety 
of  following  the  suggestion  of  Canning,  "  should 
be,  never  to  entangle  ourselves  in  the  broils  of 
Europe.  Our  second  never  to  suffer  Europe  to 
intermeddle  with  cisatlantic  affairs.  America,  North 
and  South,  has  certain  interests  distinct  from  those 
of  Europe,  and  peculiarly  her  own.  She  should 
therefore  have  a  system  of  her  own,  separate  and 
apart  from  that  of  Europe.  While  the  last  is  labor- 
ing to  become  the  domicile  of  despotism,  our  en- 
deavors should  surely  be  to  make  our  hemisphere 
that  of  freedom." 

The  Congress  was  called  to  meet  at  Panama  early 
in  1826.  The  United  States  sent  delegates  to  repre- 
sent them,  but  it  had  adjourned  before  their  arrival, 
and  though  the  adjournment  was  intended  to  be 
a  temporary  one,  it  proved  to  be  final.  It  had,  how- 
ever, by  putting  upon  its  programme,  as  a  subject 
for  deliberation,  the  emancipation  of  Cuba  from 
Spanish  control,  stiffened  the  attitude  of  our  govern- 
ment in  relation  to  it  so  far  that  Clay,  now  Secretary 
of  State,  wrote,  in  1825,  to  our  minister  at  St.  Peters- 
burg, that  we  would  not  permit  Cuba  to  pass  from 
the  hands  of  Spain  into  those  of  any  other  Euro- 
pean power.  And  why  not?  Simply  because,  in 


THE   MONROE   DOCTRINE   IN    1898        363 

the  language  of  Monroe's  message,  we  should  con- 
sider any  attempt  of  such  a  power  to  extend  its 
system  of  government  "  to  any  portion  of  this  hemi- 
sphere as  dangerous  to  our  peace  and  safety." 

Forty  years  later,  Austria  and  France  undertook  to 
set  up  an  empire  in  Mexico.  We  affected,  until  the 
civil  war  was  over,  to  believe  that  they  were  simply 
endeavoring  to  collect  from  Mexico  certain  claims  for 
injuries  to  their  subjects  which  they  believed  to  be 
justly  due;  but  as  soon  as  our  own  affairs  were  com- 
posed, we  assumed  a  different  tone,  and,  under  the 
stress  of  the  Monroe  doctrine,  Maximilian's  forces 
were  withdrawn  and  he  came  to  his  end. 

Thirty  years  more  passed,  and  then  we  found 
another  European  power  setting  up  pretensions  to 
sovereignty  over  a  large  area  of  territory  which  the 
maps  of  the  world  gave  to  Venezuela.  These  two 
countries  had  come  to  a  point  in  their  controversy 
when  their  diplomatic  relations  had  been  broken  off. 
There  was  no  one  at  London  to  represent  the  interests 
of  Venezuela  at  the  foreign  office.  The  Monroe  doc- 
trine seemed  to  President  Cleveland  to  require  him  to 
proffer  the  mediation  of  the  United  States,  and  his 
action,  as  to  matters  of  substance  at  least,  was  well 
received  by  the  country  as  a  whole.  No  better  proof 
can  be  asked  than  the  almost  unanimous  action  taken 
upon  his  recommendation  by  a  Congress  controlled 
by  a  political  party  to  which  he  did  not  belong. 
Territorial  encroachments  by  a  European  power  on 
an  American  republic,  by  the  right  of  the  stronger, 
without  a  declaration  of  war,  violate  the  Monroe  doc- 
trine as  much  as  if  they  were  effected  by  military 


364        THE   MONROE   DOCTRINE   IN    1898 

conquest.  If  sufficiently  extensive,  they  might  de- 
stroy the  independence  of  the  weaker  power;  and 
whether  great  or  small,  they  tend  directly,  if  not  re- 
sisted, to  degrade  its  character  and  with  it  that  of 
republican  government. 

There  were  grave  objections  of  form  to  the  terms 
in  which  the  dissatisfaction  of  the  United  States  was 
expressed  in  the  earlier  State  papers  of  the  Venezue- 
lan co'ntroversy ;  but  the  spirit  of  the  Monroe  doc- 
trine, as  that  doctrine  in  course  of  time  had  come  to 
be  generally  understood,  here  and  abroad,  was,  it 
seems  to  me,  a  full  justification  for  the  American 
position. 

Our  immense  increase  in  territory,  wealth,  and 
population  since  1823  has  not  only  given  us  new 
weight  in  American  politics,  but  greater  responsi- 
bilities to  our  weaker  neighbors.  More  than  ever 
since  the  Pan-American  Congress  of  Washington 
have  they  looked  upon  us  as  holding,  in  some  sort, 
an  American  protectorate.  The  Monroe  doctrine,  in 
its  original  terms,  was  couched  in  phrases  of  diplo- 
matic reserve.  And  what  was  thus  reserved?  I  should 
say  the  right  of  emphasizing  our  position  as  the 
natural  guardian  of  republican  institutions  then  or 
thereafter  existing  on  this  continent  or  on  the  islands 
in  either  ocean  whose  control  may  nearly  affect  our 
interests,  as  far  and  as  fast  as  circumstances  would 
admit. 

The  "  London  Spectator  "  said,  in  1896,  that  "  thirty 
or  fifty  years  hence  Europe,  pressed  almost  to  mad- 
ness by  inability  to  feed  overcrowded  peoples,  will 


THE   MONROE   DOCTRINE   IN    1898        365 

want  to  swarm  into  South  America  under  its  own 
flags.  To  deny  them  will  mean  attempting  to  crush 
the  combined  fleets  and  armies  of  Europe." 

The  Monroe  doctrine  has  come  to  assume  propor- 
tions that  make  it  impossible  that  anticipations  like 
those  of  the  "  Spectator  "  can  ever  be  fulfilled ;  and  it 
is  quite  as  well  that  the  world  should  know  it.  The 
Venezuelan  incident  was  the  occasion  of  official 
action  on  the  part  of  the  United  States  that  will 
never  be  retraced,  for  it  voiced  (though  perhaps  in 
too  brusque  a  way)  the  general  sentiment  of  the 
American  people.  "  Nothing  succeeds  like  success." 
If  the  course  of  President  Cleveland  in  that  matter 
did  not  command  universal  approval  in  1896,  its 
results  have  secured  it  in  1898. 

It  is  too  early  to  pronounce  as  to  what  will  be  the 
final  verdict  of  the  world  on  the  special  message  of 
President  McKinley,  as  to  intervention  in  Cuban 
affairs,  sent  in  on  April  nth,  1898,  and  the  action 
which  it  led  Congress  to  take.  Not  the  least  sig- 
nificant feature  of  that  message  was  the  absence  of 
any  allusion  to  the  collective  note  of  the  great  powers, 
addressed  to  him  a  few  days  before,  in  which  they 
made  a  "pressing  appeal"  for  the  maintenance  of 
peace.  The  reception  of  that  note,  and  the  reply 
which  was  given  to  it,  certainly  cannot  be  fairly  con- 
sidered as  in  any  way  in  derogation  of  the  Monroe 
doctrine.  That,  as  we  originally  stated  and  have 
always  maintained  it,  protests  against  European  in- 
terposition in  American  affairs  for  the  purpose  of 
controlling  the  destiny  of  any  government  which  we 


366        THE   MONROE   DOCTRINE   IN    1898 

have  recognized  as  free  and  independent,  or  of  estab- 
lishing any  colony  on  either  of  our  continents.  It 
coupled  with  this,  however,  when  first  announced, 
the  statement  that  "with  the  existing  colonies  or 
dependencies  of  any  European  power  we  have  not 
interfered  and  shall  not  interfere." 

The  powers  were  fully  warranted  by  this  avowal 
in  taking  the  action  now  in  question.  Nor  if  the 
expression  of  our  intention  not  to  interfere  with  exist- 
ing European  colonies  in  America  can  be  regarded 
as  the  legal  consideration,  so  to  speak,  of  our  demand 
that  no  more  of  them  should  be  planted  in  the  future, 
could  that  expression  have  been  understood  to  qualify 
our  right  to  complain  of  any  wrong  which  might  be 
thereafter  done  to  us  or  to  the  people  of  neighboring 
countries,  and  to  take  such  action  in  regard  to  it  as 
might  be  justified  by  the  general  rules  of  international 
law. 

Indeed,  in  regard  to  Cuban  insurrections  and  Cuban 
misrule,  we  had,  more  than  twenty  years  before, 
taken  the  initiative  ourselves  in  procuring  a  friendly 
representation  to  Spain  on  the  part  of  the  same 
powers,  in  support  of  our  views  of  the  necessity  of 
an  immediate  pacification  of  the  island.1  The  pro- 
priety of  this  action  on  our  part  was  challenged  in 
some  quarters,  and  our  Department  of  State  took 
occasion  to  vindicate  it  in  a  despatch  to  our  minis- 
ter at  Berlin,  in  1876.  "  The  expression  to  Spain," 
wrote  Mr.  Fish,  then  our  Secretary  of  State,  "  by  the 
United  States,  in  connection  with  other  powers,  of  a 
desire  that  the  civil  war  in  Cuba  should  be  brought 
1  Wharton's  International  Law  Digest,  §  60,  pp.  403,  409. 


THE   MONROE   DOCTRINE   IN    1898        367 

to  a  close,  without,  however,  taking  any  decided  steps 
of  interference,  it  being  understood  that  the  United 
States  '  neither  sought  nor  desired  any  physical  force 
or  pressure,  but  simply  the  moral  influence  of  con- 
currence of  opinion  as  to  the  protraction  of  the  con- 
test/ is  not  inconsistent  with  the  traditions  of  the 
United  States."1 

The  only  difference  between  the  concerted  repre- 
sentation to  Spain  procured  by  us  under  President 
Grant's  administration,  and  the  concerted  representa- 
tion to  us  made  by  the  same  powers  (with  the  addi- 
tion of  Austria-Hungary)  under  President  McKinley's 
administration,  was  that  the  latter  action  took  the 
shape  of  a  collective  note,  and  the  former  that  of 
separate  despatches.  This  made  the  action  taken 
more  impressive,  and  to  that  extent  added  to  its 
weight,  but  it  did  not  vary  its  essential  character. 
Indeed  the  studied  moderation  of  the  note  may  fairly 
be  considered  to  strengthen  any  claims  we  have  or 
may  have  to  influence  the  general  course  of  Ameri- 
can government. 

i  Wharton's  International  Law  Digest,  §  60,  p.  410. 


Index 


ABSOLUTISM,  political,  80;  follows 
centralization,  85;  in  the  U.  S., 
83,  84, 1 12  ;  in  Russia,  84 ;  execu- 
tive, 80;  fruit  of  Collectivism, 
113;  a  necessity  in  republics, 
116;  in  modern  business,  218. 

Academic  degrees,  196-198. 

Act,  and  intent,  270. 

Adams,  John,  241. 

,  John  Quincy,  359. 

Administration,  judicial,  257. 

Administrative  functions,  198, 214, 

257; 

Admiralty,  jurisdiction,  250,  251. 

Advocates,  322. 

Africa,  229. 

African  Company,  166,  168,  176. 

Agency,  a  gratuitous  contract,  322. 

Agricultural  Bank,  202. 

Aktiengesellschaft,  208. 

Alexander  Severus,  152. 

Allegiance,  right  to  transfer,  43, 
241. 

Altruism,  320,  341. 

Amendments,  constitutional,  how 
made,  45-47 ;  to  State  Constitu- 
tions, 45,  51. 

to  United  States  Constitu- 
tion, possible  range  of,  81 ;  pro- 
posed, 21,  327,  328,  note;  proc- 
lamation of,  114;  first,  21 ;  first 
ten,  41,  no;  fifth,  117,  137; 
eleventh,  no;  twelfth,  no; 
thirteenth,  in;  fourteenth,  65, 
1 1 1, 1 1 2, 1 13,  1 1 5 ;  fifteenth,  n i, 
112,  115. 


American  Bar  Association,  reso- 
lutions as  to  habitual  criminals, 
299. 

Americans,  national  type,  240;  a 
composite  race,  240,  264. 

Amicable  Insurance  Co.,  171. 

Anarchy,  116. 

Anglo-Saxons,  286. 

Annapolis,  charter,  184. 

Anthropology,  criminal,  290. 

Anthropometry,  291. 

Antiquity,  reverence  for,  288. 

Apollonius,  153. 

Appeals,  in  criminal  proceedings, 
138. 

Apprentices,  176,  note,  190. 

Aragon,  justiciary  of,  30. 

Arbitration,  international,  345- 
358;  beginnings  of,  345;  want 
of  sanction,  345 ;  limitations  of 
subjects,  357 ;  as  to  parties,  357 ; 
procedure  in,  346;  selection  of 
arbitrators,  346;  recommended 
by  Pan-American  Congress, 
350;  overture  from  the  United 
States,  350,  351 ;  permanent 
courts  of,  346-358 ;  between 
England  and  the  United  States, 
348-354;  permanent  judges, 
351 ;  procedure,  352-355- 

Aristotle,  108. 

Arnold,  Matthew,  341. 

Arts,  improvements  in,  216. 

Aryans,  240. 

Asia,  229. 

Assassination,  109. 


24 


370 


INDEX 


Assault,  278. 

Associations,  unincorporated,  145, 
146;  English,  170,  187;  French, 
181 ;  of  workingmen,  230. 

Associative  spirit,  220 ;  a  necessity 
of  modern  life,  221-224 ;  a  source 
of  corporate  life,  222. 

Attorney-General,  318. 

Australia,  experiments  in  legisla- 
tion, 194;  legislative  salaries, 
335  j  political  characteristics, 
336. 

Australian  ballot,  28. 

Austria,  policy  towards  corpora- 
tions, 210;  municipal  govern- 
ment in,  214. 

Austrian  Bank,  170. 

BACKUS,  Isaac,  20. 

Bacon,  Lord,  on  antiquity,  288; 
criminal  procedure,  123-125; 
revenge,  278. 

Bahamas,  335. 

Balance  of  power,  31. 

Ballot,  Australian,  28;  English, 
27,  71;  Roman,  28;  extension 
of,  27,  28;  numbering,  71. 

Baltimore,  Lord,  184. 

Banks,  incorporated,  191 ;  earliest, 
170;  State,  54;  free,  195,  196; 
Defoe's  plan,  171;  land  banks, 
171,  185;  American,  constitu- 
tional restrictions,  67,  200;  Eng- 
lish, 200,  205 ;  Brazilian,  208  ; 
English  joint  stock,  202;  Irish, 
201 ;  national,  in  United  States, 
199;  Bank  of  Amsterdam,  170, 
note;  of  England,  170;  of  Ire- 
land, 201  ;  of  the  Manhattan 
Co.,  189 ;  of  North  America,  188 ; 
of  Scotland,  170 ;  of  St.  George, 
170;  of  the  United  States,  96, 
97,  188  ;  of  Venice,  170. 

Bar,  work  in  developing  law,  260, 
261 ;  American,  260. 


Barbarians,  former  use  of  term, 
341 ;  mediaeval  codes,  160. 

Baring  Brothers,  237. 

Bathurst,  Lord,  190. 

Bazin,  334. 

Beavers,  190. 

Beccaria,  264. 

Belcher,  Governor,  187. 

Belgium,  incorporation  laws,  207 ; 
legislative  salaries,  328 ;  social- 
ism in,  213;  criminal  procedure 
in,  3°7»  3°9- 

Benefit  societies,  213,  231. 

Berlin,  227. 

Bertillon  system,  291,  300,  306, 
309-311. 

Bill  of  Rights,  American,  40. 

Biology,  law  of,  268,  296. 

Blockade  of  1861  by  U.  S.,  354. 

Body,  human,  291. 

Borgeaud,  on  American  Constitu- 
tions, 48. 

Bracton,  118. 

Bram's  Case,  126. 

Brazil,  free  incorporation  law,  207. 

Brewer,  Mr.  Justice,  138. 

Bristol,  166. 

British  Linen  Company,  206. 

Britton,  on  torture,  118. 

Brotherhood  of  St.  Thomas 
Becket,  165. 

Brown,  Mr.  Justice,  249. 

Brown  University,  184. 

Bubble  Act,  178,  187,  200. 

Burgundy,  165. 

Burlingame  treaty,  66. 

Burr,  Aaron,  92,  189. 

CABINET,  President's,  32,  88. 

California,  anti-Chinese  laws,  65  ; 
taxation  in,  68. 

Canada,  general  incorporation 
law,  210;  power  of  Governor- 
General,  63 ;  legislative  salaries, 
335- 


INDEX 


Canals,  191,  213. 

Canning,  George,  359. 

Capital,  altruistic  use  of,  320 ; 
Collectivism  as  to,  237 ;  com- 
bination with  labor,  217,  229: 
of  fraternal  societies,  220,  231  ; 
these  discourage  individual  ac- 
cumulation, 231,  232 ;  pressure 
for  investment,  170,  200. 

Capital  crimes,  242. 

Capitalists,  among  workingmen, 
231,  232;  leaning  towards  cor- 
porations, 218. 

Carlyle,  on  heroes,  34 ;  on  national 
history,  42. 

Carnot,  President,  10,  n. 

Carolina  Charter,  167,  168. 

Castellum,  1 59,  note. 

Castrum,  159,  note. 

Cato,  145. 

Caucus,  38. 

Charitable,  bequests,  274,  316, 
320;  gifts,  320;  corporations, 
206. 

Charles  I.,  285. 

Charters,  as  contracts,  121;  colo- 
nial, 1 66, 167,  169, 185 ;  proposed 
revocation,  169;  monopolistic, 
169;  municipal,  212;  royal,  185, 
202;  special,  146,  150,  193,  224, 
227. 

Chartists,  330. 

Chinese  labor,  65. 

Christian  Church,  at  first  un- 
favorable to  patriotism,  13; 
position  as  affected  by  the  Ref- 
ormation, 342 ;  alliance  with 
the  State,  15. 

Christian  Republic  of  Europe,  342. 

Christianity,  catholicity  of,  15; 
altruistic,  320 ;  its  international 
influences,  343. 

Church,  ancient  functions,  21 ;  in- 
terpretation of  Pentateuch,  283 ; 
confiscation  of  property  by 


Henry  VIII.,  173;  libraries,  24; 
registers,  24 ;  support  of  morals, 
24. 

Church  and  State,  ancient  union, 
15;  separation  of,  15, 1 6,  246. 

Church  of  England,  19. 

Cicero,  147,  240. 

Cincinnati,  240. 

Cities,  decay  of  power  in  middle 
ages,  164 ;  early  charters,  160, 
note ;  growth  of,  35,  294 ;  in  the 
United  States,  293;  dangers 
from,  293,  294;  modern  func- 
tions, 213;  trade-city,  162. 

Citizens,  of  the  United  States, 
253 ;  of  the  State,  65,  253  ;  cor- 
porations as,  65 ;  rights  against 
State,  247. 

City-State,  141. 

Civil  Law,  as  to  corporations, 
145-158 ;  as  to  partnerships,  181. 

Civil  Procedure,  247. 

Civil  Rights  Bill,  76. 

Civil  Service  Examinations,  39. 

Civil  War,  American,  results,  50. 

Civilization,  altruistic,  320;  irregu- 
lar advance,  348. 

Class,  criminal,  292,  293 ;  distinc- 
tions of,  26 ;  of  wage  earners, 
232;  political  aims,  212. 

Clay,  Henry,  362. 

Clergy,  American,  favor  religious 
liberty,  19. 

Cleveland,  President,  105. 

Clodian  law,  148. 

Code  pleading,  57,  247. 

Codes,  Austrian,  280;  barbarian, 
160;  Louisiana,  297;  of  inter- 
national law,  43  ;  of  Napoleon, 
207,  280,  281 ;  Theodosian,  154, 
note. 

Codification,  256,  257. 

Coke,  Sir  Edward,  118,  206. 

Colbert,  168,  179. 

Coleridge,  S.  T.,  113. 


372 


INDEX 


Collectivism,  gain  of,  113,  114, 
237  ;  Roman,  142. 

College,  Stephen,  243. 

Colleges,  colonial  charters,  185; 
degrees  from,  196-198 ;  incorpo- 
ration under  general  laws,  196. 

Collegium,  145,  151,  157- 

Cologne,  158. 

Colombia,  258,  335,  note. 

Colonia,  158,  159,  note. 

Colonial  government,  charters, 
166,  169,  184;  early,  263;  in 
New  England,  8. 

Columbia  College,  185. 

Combinations,  of  labor,  220;  of 
labor  and  capital,  217. 

Comes  civitatis,  160. 

Comity,  307. 

Commerce,  164,  234. 

Common  Recovery,  269. 

Communauti,  161. 

Commune,  214. 

Compagnie,  182. 

Companies  Act,  205,  225. 

Company,  joint-stock,  154,  164; 
"regulated,"  164,  166,  note; 
trading,  165,  169. 

Competition,  164,  233. 

Compte  en  participation,  182. 

Conciliabulum,  159,  note. 

Confederate    States  of  America, 

9°>  95- 

Confessions,  extorting,  118,  125; 
extra-judicial,  125,  126. 

Congress,  Continental,  325 ;  of  the 
United  States,  326-328. 

Connecticut,  admission  of  inter- 
ested witnesses,  249 ;  colonial 
charters  by,  184,  note,  185 ; 
colonial  Constitution,  48,  258; 
corporations  in,  226;  taxation 
of,  236,  note ;  delegates  to  Con- 
tinental Congress,  325;  first 
State  Constitution,  46;  copied 
largely  from  that  of  Mississippi, 


47  ;  initiates  the  referendum,  47  ; 
parole  of  prisoners,  301,  note; 
referendum  in,  260. 

Conservatism,  286. 

Constitution  of  the  United  States, 
first  ten  amendments,  41 ;  last 
five  amendments,  no,  in;  re- 
made by  XlVth  Amendment, 
113;  unwillingness  to  alter,  328, 
note.  See  "  Amendments,  Con- 
stitutional." 

Constitutional  Conventions,  47, 
259;  national,  82;  of  United 
States  in  1787,  10,  18. 

Constitutional  law,  31,  101,  252, 
257,  258. 

Constitutions,  executive  construc- 
tion of,  101,  252,  253,  257,  258 ; 
expansion  by  necessity,  93 ;  his- 
torical development  of,  87,  120 ; 
judicial  construction  of,  31 ; 
proper  scope,  %S:  State,  changes 
in,  45,  51 ;  State,  general  incor- 
poration laws,  199 ;  State,  modes 
of  change,  47 ;  State,  popular 
ratification  of,  46;  style  and 
form,  TJ,  75 ;  written,  30. 

Consuls  of  trading  companies,  166, 
note. 

Contempt  of  court,  56. 

Continental  Congress,  325. 

Contracts,  obligation  of,  121,  253; 
liability  to  make,  248. 

Convention,  constitutional,  47, 259. 

Convention  of  1787,  10,  18;  de- 
bates on  the  executive,  87,  88; 
debates  on  legislative  salaries, 
325,  326;  debates  on  chartering 
corporations,  188. 

Convicts,  police  supervision  of, 
301-306 ;  paroles  to,  299 ;  recidi- 
vists, 297,  298. 

Co-operative  associations,  209, 
226,  233. 

Copernican  system,  283,  342. 


INDEX 


373 


Coroners'  inquests,  270,  274. 

Corporations,  municipal,  Ameri- 
can and  English  laws  of,  com- 
pared, 211,  212;  general  incor- 
poration laws,  198-200,  210-212; 
German  conception,  162;  home 
rule  in,  142,  158,  214;  in  Ameri- 
can colonies,  184 ;  in  dark  ages, 
159;  mayor,  85,  160;  origin,  34, 
35,  141;  personality,  142;  politi- 
cal control,  212;  powers,  73, 
21 1 ;  Roman,  157,  158;  State 
supervision,  214. 

,  private,  American  and  Eng- 
lish laws  of,  contrasted,  206,  207, 
251,  252;  American  legislation 
as  to,  63,  64 ;  as  masters,  229 ; 
by-laws,  165;  cumulative  vote, 
70;  Dartmouth  College  Case, 
121,  253;  directors  of,  173,  219, 
251 ;  distrust  of,  in  i8th  century, 
190;  failures  and  re-organiza- 
tions, 228 ;  fictitious  capitaliza- 
tion, 68 ;  general  incorporation 
laws,  64,  146,  150,  173,  183,  193- 
198,  200-207,  220,  225,  248;  his- 
tory in  England,  170,  173,  175, 
200-207  >  history  in  Germany, 
208,  209;  history  in  France,  179- 
183  ;  history  in  modern  Europe, 
170,  192,  207  ;  history  in  Rome, 
141,  145,  155;  history  in  United 
States,  63,  184-189,  193-198; 
how  far  citizens,  65 ;  individual 
liability,  157,  204;  influence  on 
legislation,  64;  legislative  con- 
trol of,  65 ;  limitations  of  power, 
196;  moneyed,  essential  ele- 
ments, 173 ;  personality,  142, 
143,  206 ;  relations  to  socialism, 
236-238;  results  of,  225;  taxa- 
tion, 234 ;  trust-fund  doctrine, 
252 ;  unity  of  management,  217  ; 
watered  stock,  64,  176. 

Corporation  Act,  English,  19. 


Corpus,  143,  154,  164,  233. 

Countess  of  Shrewsbury's  Case, 
119,  123,  124. 

Courts,  American  canons  of  deci- 
sion, 251 ;  resemblance  to  Eng- 
lish, 348 ;  as  interpreters  of 
Constitutions,  258 ;  constitu- 
tional functions,  30 ;  despatch 
of  business  in,  56;  inherent 
powers,  357 ;  international,  346, 
357  5  JurY  trials,  249 ;  legal  fic- 
tions in,  268-289;  litigation 
with  foreigners,  357  ;  local,  262 ; 
popular  regard  for,  349 ;  pre- 
ventive effect,  355;  respect  to 
precedent,  250 ;  respect  to  truth, 
283 ;  sanction  of  decisions,  344. 

Coxe,  Brinton,  31. 

Crime,  as  a  profession,  294; 
causes,  290 ;  decline  in  Eng- 
land, 305. 

Criminal  anthropology,  290;  per- 
sonal responsibility  for  crime, 

3H. 

Criminal  law,  English,  278. 

Criminal  procedure,  allowing  de- 
fendant to  testify,  127 ;  his 
cross-examination,  129;  Ameri- 
can system,  242;  appeals,  138, 
244;  extenuating  circumstances, 
280;  Austrian,  280;  Bavarian, 
132;  Beccaria's  influence,  264 ; 
Bertillon  system,  291,  300,  306, 
309,  311;  branding,  281,  note; 
British,  132,  243,  295,  299,  304, 
305 ;  conclusive  proof  demand- 
ed, 131 ;  defence  of  insanity, 
270,  277-282 ;  discretion  of  trial 
judge,  278;  early  modes,  296; 
exemption  of  accused  from  ex- 
amination, 117,  123, 134,  243;  ex 
post  facto  laws,  246,  253;  favor- 
ing the  accused,  129,  130;  fine, 
296 ;  French,  134,  280, 303 ;  func- 
tions of  committing  magistrate, 


374 


INDEX 


124,  133;  habitual  criminals, 
290;  legislation  needed,  136; 
life  sentences,  297,  312;  parole 
system,  298  ;  penitentiaries,  242 ; 
pleadings,  130 ;  probationers, 
242,  306;  public  prosecutors, 
133,  244,  247;  Sir  John  Jervis' 
Act,  123;  ticket  of  leave,  299; 
torture,  121,  132,  135;  uncertain- 
ties of  American,  130;  use  of 
jury  in,  132;  whipping,  296. 

Criminals,  habitual,  290-315;  po- 
lice supervision  of,  301-306, 313 ; 
registration  of,  301,  309,  310. 

Cuba,  357,  362,  365,  366. 

Cummings  v.  Missouri,  253. 

Cumulative  vote,  70. 

Cuq,  on  Roman  Institutions,  142. 

Currency,  colonial,  187 ;  paper,  185. 

D'AGUESSEAU,  286. 

Darien,  Scotch  settlement  of,  177. 
Dartmouth  College,  185. 
Dartmouth    College    Case,     121, 

253- 

Davis,  Jefferson,  95. 

Death,  civil  action  for  causing,  66. 

Debtors,  laws  to  favor,  73;  im- 
prisonment of,  248. 

Debts,  collection  of,  73. 

Declaration  of  Independence,  241. 

Deeds,  record  of,  247,  262  ;  disen- 
tailing, 269. 

De  Foe,  168,  171. 

Degradation,  civic,  307. 

Degrees,  academic,  196-198. 

Denmark,  salaried  legislatures, 
330;  treaty  with  Prussia,  347. 

Departments  of  government, 
three,  31,  322 ;  executive  func- 
tions, 87,  88;  judicial  functions, 
198,  257  ;  legislative  functions, 
49,  55 ;  administrative  functions, 
198,  214. 

Despotism,  in  democracies,  109. 


De  Tocqueville,  views  on  taxation, 
234;  views  on  judicial  power, 
257;  views  on  official  salaries, 
331- 

Diploma,  college,  198. 

Diplomacy,  modern  methods,  345. 

Directors,  of  corporations,  219. 

Disestablishment,  church,  17. 

Disfranchisement,  306,  307. 

Divorce,  restrictive  laws,  75;  atti- 
tude of  church,  254;  at  Rome, 
254;  procedure  in,  255. 

Domicile,  registry  of,  303 ;  as  a  test 
of  jurisdiction,  255. 

Dorr's  Rebellion,  91. 

Duane,  Wm.  J.,  115. 

Duelling,  71. 

Durham,  bishop  of,  211;  Univer- 
sity of,  197. 

EAST  INDIA  COMPANY,  English, 
166,  168;  Dutch,  167,  193,  note  ; 
French,  168. 

Eastland  Company,  166. 

Education,  anciently  in  charge  of 
church,  21 ;  assumed  by  the 
State,  22,  72  ;  religious,  23;  im- 
portance attached  to  in  colonial 
period,  53 ;  in  Southern  States, 
72 ;  influence,  internationally, 

345- 

Egypt,  tradesmen  in,  145,  150. 

Eighteenth  century,  remoteness 
of,  83. 

Elections,  corruption  in,  62 ;  cu- 
mulative voting,  70 ;  canvass  of, 
71  ;  popular,  80. 

Elective  franchise,  extension  of, 
25,  26;  duty  to  use,  244;  for- 
feiture of,  306,  307.^ 

Electors,  presidential,  85,  106,  107. 

Elizabethan  age,  263. 

Eminent  domain,  196. 

England,  cash  system  of  trade, 
233 ;  changes  in  legal  proced- 


INDEX 


375 


ure,  349;  decline  of  monarchy 
in,  88  ;  fall  of  rents,  232  ;  his- 
tory of  private  corporations  in, 
170,  173,  175;  American  invest- 
ments in,  227  ;  now  a  republic, 
107,  243 ;  protection  of  charities, 
318  ;  the  commonwealth,  340  ; 
trades  unions  in,  231.  See 
"  House  of  Commons,"  "  House 
of  Lords." 

Entails,  breaking,  269. 

Epicurean  philosophy,  232. 

Equal  rights,  221. 

Equity,  place  in  history,  267  ;  pro- 
cedure, 57. 

European  concert,  361. 

Evidence,  artificial  rules  of,  131  ; 
preponderance  of,  131. 

Evolution  of  institutions,  14. 

Examination  of  criminals,  117, 128. 

Exchange,  stock,  169. 

Exchequer  bills,  171. 

Executive,  compensation  of,  322; 
personal  dignity,  33;  term  of 
office,  55. 

Executive  councils,  50,  88. 

Executive  power,  checks  in  mon- 
archies, 31 ;  increase  in  our 
States,  55 ;  its  real  nature,  87, 
88 ;  laws  unexecuted  by,  98 ; 
strength  in  republics,  31. 

Executor,  317. 

Exemptions  from  execution,  73. 

Expatriation,  voluntary,  43,  241. 

Ex  post  facto  law,  253. 

Extradition  of  criminals,  312. 

FACTORY,  trading,  163;  De  Foe's 
project,  171. 

Falcidian  part,  272,  273,  274,  317. 

Familia,  143,  144,  147,  155. 

Family,  Roman,  142,  144,  234 ;  in- 
fluence in  American  colonies,  53. 

Farmers  of  the  revenue,  Roman, 
H7.  154. 


Federalist,  The,  86,  89. 

Feltmakers,  company  of,  190. 

Felton's  Case,  122. 

Feudalism,  decay  of,  164. 

Fiction,  legal,  defined,  286 ;  deca- 
dence of,  266 ;  modern  use,  266- 
289 ;  nature,  267  ;  origin,  266. 

Field,  David  Dudley,  43,  248. 

Finances,  public,  54. 

Finch's  discourse  on  law,  120. 

Fish,  Hamilton,  366. 

Fisher  v.  Fielding  ,  349. 

Fletcher  v.  Peck,  252. 

Force,  governmental,  341,  344. 

Foreign  judgment,  348. 

Foreigners,  341,  343,  357. 

Fortescue,  on  judicial  torture,  122. 

Forum,  159,  note. 

France,  influence  on  modern  gov- 
ernment, 9 ;  influence  on  Ameri- 
can thought,  264 ;  Parliaments  of 
Justice,  98  ;  the  States-General 
in  1789,  9,  10;  the  National 
Assembly,  10,  331 ;  the  revolu- 
tion, n,  83,  109,  162;  religious 
liberty  in,  21 ;  first  Constitution, 
29;  Constitution  of  1848,330; 
of  1851,  331 ;  trade  guilds,  161, 
162 ;  history  of  corporations  in, 
I79-J83,  226;  criminal  codes, 
280,  281,  303,  307  ;  socialism  in, 
213;  the  Com mune,  214;  trades 
unions  in,  220,  231  ;  State  aid 
to  co-operative  production,  233 ; 
taxation  in,  234 ;  constitutional 
revision  in,  259 ;  registration  in, 
303;  protection  of  charities, 
318  ;  salaried  legislature,  330. 

Franchise,  elective,  306,  307  ;  par- 
liamentary, 332  ;  corporate,  186, 
207. 

Franklin,  Benjamin,  241,  321  ;  his 
junto,  149 ;  French  ideas,  264. 

Fraternities,  religious,  160;  Ro- 
man, 142;  within  a  corpora- 


376 


INDEX 


tion,  1 86;  of  wage  earners,  221 ; 
mismanagement  of,  232. 

Freedmen,  suffrage  for,  26;  ap- 
prentice laws,  26. 

Frith-guild,  161. 

GABINIAN  law,  28. 

Gambling  Act,  179. 

Garfield,  assassination  of,  1 10. 

Gavelkind,  273. 

Gellius,  Aulus,  159,  note. 

Genesse  Chief,  The,  251. 

Genossenschaften,  209. 

George  I.,  340. 

George  II.,  179. 

George  III.,  285. 

Georgia,  constitutional  changes  in, 

77- 

Germans,  ancient,  159,  259;  in 
United  States,  240. 

Germany,  free  incorporation  laws, 
208,  209,  226;  attract  English 
capital,  227;  journalism  in,  38; 
socialism  in,  333 ;  State  social- 
ism in,  25  ;  the  Reichstag,  333  ; 
trades  unions  in,  220. 

Gerry,  Elbridge,  326. 

Gladstone,  28. 

God,  ancient  conception  of,  342. 

Goethe,  on  women,  27. 

Government,  ancient,  its  aims,  14 ; 
modern,  began  when,  6;  its 
aims,  14;  share  of  people  in, 
345;  mutability  of  principles, 
337;  revolutions  of  form,  340; 
of  methods,  348 ;  sources  of,  266. 

Governor,  State,  term  of  office, 
49,  55 ;  veto  power,  31,  55,  85 ; 
increase  of  power,  55;  pardon- 
ing power,  85. 

Grand  jury,  56,  198,  note. 

Granger  Cases,  65. 

Grapeshot,  Case  of  the,  103. 

Gratuities,  public,  62. 

Great  Britain,  insecurity  of  prop- 


erty in,  40;  now  a  democracy, 
83,  361 ;  responsible  ministry  in, 
97 ;  corporations  in,  200-207, 
225;  labor  associations  in,  231 ; 
treaty  of  arbitration  with,  348. 
See  "  England  "  and  "  House  of 
Commons." 

Grotius,  343,  345. 

Guilds,  Roman,  143,  150;  mediae- 
val, 1 60,  161  ;  merchant,  161. 

Habeas  corpus,  suspension  in  Unit- 
ed States,  92,  95. 

Habitual  criminals,  290-315. 

Hamburg,  162,  note ;  Bank  of,  170. 

Hamburgh  Company,  165,  note. 

Hamilton,  Alexander,  189. 

Hand  in  Hand  Insurance  Co.,  171. 

Hanoverian  dynasty,  340. 

Hanseatic  league,  163. 

Harvard  College,  184. 

Hatting  trade,  190. 

Hawaii,  free  incorporation  law, 
210. 

Hayburn's  Case,  31. 

Heineccius,  149. 

Heirs,  cutting  off  by  will,  316; 
legal  protection  of,  271,  272,  273, 
274,  288 ;  primogeniture,  262. 

Hempstead,  charter,  184,  note. 

Henry  III.,  161. 

Henry  IV.  of  France,  342. 

Henry  VIII.,  173. 

Hero  worship,  33. 

Holland,  influence  on  American 
law,  239. 

Holmes,  Oliver  Wendell,  261. 

Holy  Alliance,  The,  360. 

Home  Rule,  35,  142. 

Homicide,  139,  277,  280-282. 

Honor,  protection  of,  277. 

Hospitals,  charitable,  174. 

House  of  Commons,  power  of,  32 ; 
pay  of  members,  323-325,  329- 
333>  34°;  powers  of  members, 


INDEX 


377 


324 ;  functions  of  members,  324 ; 

landed  interest  in,  324 ;  changes 

in  composition,  332. 
House  of  Lords,  abolition  of,  27  ; 

attendance  in,  334. 
Hudson,  Henry,  167. 
Hudson's  Bay  Company,  166,  168, 

175- 

Hume,  191. 
Hungary,  free  incorporation  law, 

210. 
Husband  and  wife,  254. 

IDEAS  of  '89,  14,  29,  40,  42. 

Identification,  personal,  291. 

Illinois,  voting  in,  29,  70. 

Imprisonment,  for  debt,  73;  for 
crime,  242,  296. 

Incorporation,  under  general  laws, 
64,  199,  248. 

India,  Empress  of,  83. 

Indies,  French  Company  of  the, 
1 80. 

Individual,  rights  of,  40,  41 ; 
merger  in  corporations,  221, 237. 

Individualism,  effect  of  business 
corporations  on,  237 ;  effect  of 
labor  organizations  on,  231, 
232 ;  French  philosophy  of,  13 ; 
in  religious  opinion,  17 ;  loss  of, 
113,  114. 

Infamy,  277,  306,  307. 

Insanity,  as  a  defence  in  criminal 
cases,  270,  277-282;  as  a  legal 
fiction,  270-284;  in  suicides, 
274-277;  in  testators,  271. 

Inscriptions,  Roman,  153. 

Insolvent  debtors,  248. 

International  Law,  beginnings  of, 
343,  345;  source  and  sanction, 
343 ;  part  of  municipal  law,  343 ; 
American,  350;  courts  of  arbi- 
tration between  nations,  355. 

Inter-State  Commerce  Act,  137. 

Intervention,    right    of    interna- 


tional, 361;  by  the  United 
States  in  Cuban  affairs,  365. 

Iowa,  general  incorporation  laws, 
200. 

Institutes  of  Justinian,  154. 

Institutions,  their  characteristics, 
2,  4,  82;  legal,  Taylor's  defini- 
tion, 3  ;  modern  political,  begin- 
ning of,  i ;  list  of,  3 ;  growth  of, 
82;  sentimental  causes,  221, 
224;  national  differences,  337, 
338. 

Insurance,  companies,  170,  191, 
196 ;  taxation,  235 ;  by  Hud- 
son's Bay  Co.,  176,  note  ;  com- 
pulsory, 25;  benefit  societies, 
213,  231 ;  endowment,  176,  note  ; 
wagering,  178. 

Intent,  270. 

Ireland,  results  of  the  Union,  83 ; 
parliamentary  delegation,  332, 

333- 

Irish,  in  the  United  States,  240. 

Italians,  New  Orleans  massacre, 
244. 

Italy,  free  incorporation  law,  210, 
227 ;  trades  unions  in,  231  ; 
criminal  punishments,  307  ;  leg- 
islature, 334. 

JACKSON,  President,  99;  foreign 
policy,  94;  struggle  with  United 
States  Bank,  96,  97  ;  views  of 
executive  power,  101. 

Jail,  made  too  attractive,  313. 

Japan,  constitution  of,  42  ;  educa- 
tion in,  22 ;  its  political  charac- 
teristics, 336;  trades  unions* 
220. 

Jardine,  on  torture,  122. 

Jefferson,  epitaph,  24 ;  French 
ideas,  29,  264  ;  influence  in  edu- 
cation, 23  ;  influence  in  Virginia 
legislation,  17  ;  Louisiana  pur- 
chase, 96  ;  on  the  Monroe  Doc- 


378 


INDEX 


trine,  362 ;  views  on  expatriation, 
241  ;  views  of  power  of  Presi- 
dent, 86,  99. 

Jeffreys,  Chief  Justice,  119. 

Johnson,  President,  99,  101 ;  im- 
peachment of,  TOO,  115,  339. 

Joint-Stock  Companies  Registra- 
tion Act,  201,  203. 

Joint-stock  company,  denned, 
154,  164;  beginnings  of,  168 ; 
English  laws  as  to,  203 ;  limited 
liability  in  England,  204;  in 
Germany,  209;  consequences  of 
failure,  227. 

Journalism,  influence  on  govern- 
ment, 37. 

Judex,  1 60. 

Judges,  election,  50,  59;  legisla- 
tive appointment,  57 ;  functions 
in  jury  trials,  249;  in  will  cases, 
318  ;  salaries,  323  ;  of  interna- 
tional courts,  352,  353. 

Judgment,  foreign,  348. 

Judiciary,  interpreters  of  Consti- 
tutions, 30,  252,  258;  judge- 
made  law,  257  ;  powers  of,  257  ; 
elective,  50,  59,  250;  term  of 
office,  55 ;  of  the  United  States, 
85;  British,  132;  executive  pro- 
tection of,  104;  supervision  of 
corporate  organizations,  198. 

Julius  Caesar,  148,  152. 

Jurisdiction,  admiralty,  251 ;  in 
divorce  suits,  255. 

Jurisprudence,  definition,  257 ; 
Roman  definition,  246 ;  univer- 
sal principles,  341  ;  American, 
239>  257  5  its  development,  260 
263 ;  a  gauge  of  civilization,  239; 
leading  decisions,  252,  253 ;  out- 
worn, 269;  international,  347. 

Jury,  trial  by,  56;  issues  before, 
279 ;  decadence  of,  250 ;  una- 
nimity, 56;  continental  system, 
279 ;  American  changes  in  trial 


by,  249 ;  restricting  powers  of 

judge,    249;   prosecutions    for 

libel,  245. 
Justice,  natural,  253 ;  through  law, 

282. 
Justinian,  Institutes,  154. 

KENT,  custom  of,  273. 

King,  can  do  no  wrong,  267,  285 ; 

appointments  of,  322. 
King,  Rufus,  188. 
Knights  Templar,  160. 
Kommanditgesellschaften  auf  Ak- 

tien,  208. 
Kreisordnung,  210. 

LABOR,  individual  skill  now  unim- 
portant, 217;  organized,  213, 
217,  229,  231,232;  political  rep- 
resentation, 332 ;  protection  of, 
15;  relations  to  capital,  217; 
Roman  guilds,  143. 

Land,  modes  of  transfer,  269 ; 
registry  of  titles,  247. 

Land  Banks,  English,  171  ;  in 
Connecticut,  185. 

Landgemeineordmmg,  210,  note. 

Lanuvium,  inscription,  151,  note. 

Latin,  use  in  middle  ages,  263. 

Lauvergne,  292,  297. 

Law,  becoming  institutional,  121 ; 
customary,  287,  288,  344;  devel- 
opment of,  1 20,  260,  261,  266, 
267  ;  ex  post  facto,  253  ;  general 
and  equal,  221 ;  rests  on  con- 
sent, 344  ;  sanction,  344 ;  Stoic 
conception  of,  282 ;  unconstitu- 
tional, 99;  unjust,  279;  unsuited 
to  the  community,  277-279 ; 
when  ancient  and  settled,  285, 
315.  See  "  Criminal  Procedure," 
"  Constitutional  Law,"  "  Inter- 
national Law,"  "  Roman  Law." 

Law,  John,  179. 

Law  merchant,  219. 


INDEX 


379 


Lawyers,  duty  in  argument  of 
causes,  250 ;  work  in  develop- 
ing law,  260,  261. 

Legal  fiction,  see  "  Fiction, 
legal." 

Legislation,  American,  36,  337  ; 
effect  on  governments,  267 ; 
equality,  221 ;  experiments  in, 
194;  growth  in  modern  times, 
36;  inconsiderate,  33;  outside 
influence  on,  337  ;  progress  in, 
287 ;  relation  to  unwritten  law, 
287  ;  Roman,  46 ;  special  pro- 
hibited, 36,  57,  146,  200. 

Legislative  department,  Ameri- 
can checks  on,  49,  53,  258 ; 
growing  distrust  of,  57,  224  ;  in- 
herent limitations,  253 ;  judicial 
powers,  55. 

Legislatures,  appointment  of 
members  to  office,  58 ;  biennial 
sessions,  69;  colonial  in  Amer- 
ica, 325 ;  control  by  agricul- 
tural interest,  236;  executive 
sessions,  37 ;  favoritism  in,  224 ; 
popular  representation  in,  224 ; 
position  of  members,  322 ;  power 
in  free  governments,  337;  pro- 
cedure in,  61,  62;  rush  of 
business  in,  224;  salaries  for 
members,  69,  322-340. 

Leipsic,  church  services  in,  16. 

Leon,  charter  of,  160,  note. 

Levant  Company,  166. 

Libel,  245. 

Liberty,  civil,  248;  how  affected 
by  war,  253;  of  contract,  248; 
restraint  for  criminals,  295 ;  re- 
ligious, 15,  23. 

Libraries,  public,  24. 

Lieber,  Francis,  220. 

Life  insurance,  early  English,  176, 
note  ;  gambling  in,  1 78. 

Limited  companies,  205,  209,  218. 

Lincoln,  President,  92,  93,  99. 


Liquor-selling,  prohibition  of,  75. 

Literature,  early  colonial,  263; 
mediaeval,  263;  Revolutionary 
era,  264. 

Liverpool  Insurance  Co.,  202. 

Livingston,  Edward,  297. 

Loan  Association  v.  Topeka,  253. 

Loans,  public,  62. 

Lobbying,  63. 

Local  Government  Act,  211. 

Lombroso,  290. 

London,  trade  of,  165;  livery 
companies,  162;  guild-hall,  162; 
penny  post,  168 ;  water  supply, 
171 ;  banking  in,  202,  205. 

Lotteries,  71. 

Louis,  Saint,  275. 

Louis  XIII.,  168,  343. 

Louis  Napoleon,  331. 

Louisiana,  purchase  of,  96 ;  repu- 
diation in,  74 ;  penal  code,  297, 
311;  lotteries  in,  71;  undutiful 
wills,  317 ;  Provisional  Court 
in,  103 ;  general  incorporation 
laws,  199. 

Loyalty,  13. 

Luther,  342. 

Lynch  law,  136,  139,  244,  302. 

Lyons,  158,  229. 

MACAULAY,  T.  B.,  93. 

Machiavelli,  345. 

Machinery,  political  conse- 
quences, 216. 

Madison,  views  on  religious  lib- 
erty, 16;  on  executive  power, 
88,  101 ;  as  to  corporations,  188. 

Magister,  147,  154. 

Magna  Charta,  14,  118. 

Maine,  criminal  punishments  in, 
298. 

,  Sir  H.  S.,  89,  266,  269. 

,  The,  356. 

Maisons  de  Dieti,  174. 

Majorities,    influence     of    party 


38° 


INDEX 


nominations  on,  39 ;  tyranny  of, 

33- 

Man,  brotherhood  of,  341,  345; 
classes  of  mankind,  292  ;  duties 
of,  320  ;  evolution  of,  292  ;  rights 
of,  40;  The  Forgotten,  130. 

Manchester,  211,  213,  note,  229. 

Manhattan  Company,  189. 

Manslaughter,  281,  note. 

Manufactures,  household,  216; 
in  American  colonies,  190 ; 
modern  characteristics,  217 ; 
public  aid  for,  213;  overproduc- 
tion, 229. 

Marbury  v.  Madison,  31,  252. 

Marcus  Aurelius,  34,  149. 

Marine  Hospital  Fund,  25. 

Marriage  as  a  sacrament,  284 ; 
divorce,  254. 

Married  women,  254. 

Marshall,  Chief  Justice,  92,  121, 
251,252,253. 

Martial  law,  92. 

Maryland,  colonial  charters  in, 
184 ;  early  constitutional  amend- 
ments, in,  47. 

Marx,  Karl,  238. 

Mason,  Jeremiah,  241. 

Massachusetts,  Constitution  of 
1780,  46,  51 ;  forfeiture  of  char- 
ter, 184,  note  ;  patent,  166;  pro- 
bation system,  305 ;  veto  power 
in,  32;  early  incorporations  in, 
187. 

Maxims,  political,  267. 

McCarthy,  Justin,  330. 

McCulloch,  J.  R.,  218. 

McCurdy,  Charles  J.,  249,  note. 

McKinley,  President,  95,  365. 

Mechanical  inventions,  35. 

Merchant  adventurers,  165,  167. 

Merchant  guilds,  161. 

Merchants,  London,  165. 

Mexico,  legislative  salaries,  335  ; 
Maximilian,  363. 


Michigan,  free  banking  law,  195. 

Militia  of  United  States,  90. 

Mill,  J.  S.,  on  individualism,  14. 

Milligan's  Case,  92,  253. 

Millionnaires,  237,  238. 

Milton,  on  municipal  government, 
214-216. 

Ministry,  responsible,  32,  97,  267. 

Minority,  protection  of,  70. 

Minority  representation,  29,  39; 
in  England,  29 ;  in  Illinois,  29. 

Mississippi,  attack  on  reconstruc- 
tion laws,  102. 

Mississippi  Company,  180. 

Modern  government,  began  when, 
6,  16;  its  aims,  14;  first  centen- 
ary of,  42 ;  flexibility,  42 ;  share 
of  people  in,  345. 

Modern  society,  preceded  modern 
government,  6;  Carnot's  claim, 
12;  influence  of  the  Church, 

I3- 

Mommsen,  Th.,  149,  158,  163. 

Monarchy,  source  of  title,  341 ; 
hereditary  succession,  108;  de- 
cline of,  360;  checks  in,  31 ;  in 
America,  361. 

Monasteries,  suppression  of,  173. 

Money,  at  Rome,  156. 

Monopoly,  161,  165;  Parliamen- 
tary protest,  175. 

Monroe,  President,  106,  359. 

Monroe  doctrine,  105,  359-367; 
origin,  359;  scope  of,  363,  364; 
limits  of,  366 ;  its  acceptance  by 
the  great  powers,  363 ;  the  col- 
lective note  of  1898,  365,  367  ; 
applied  to  Mexico,  105;  applied 
to  Venezuela,  105. 

Montesquieu,  influence  on  mod- 
ern government,  9,  31 ;  in  the 
United  States,  18,  264. 

Morellet,  Abbe,  192. 

Municipal  corporations,  origin, 
34;  Roman  history,  157;  home 


INDEX 


381 


rule  in,  35,  158,  214;  general 
incorporation  laws,  198,  200, 
210-212;  limitation  on  taxes, 
73;  State  supervision,  214; 
mayor's  power,  85;  American 
and  English  laws  of,  contrasted, 
211,  212;  political  control,  212. 

Municipal  Corporations  Act,  Eng- 
lish, 27,  162. 

Municipal  Corporations  (Consoli- 
dation) Act,  211. 

Municipal  Law,  344.    See  "  Law." 

Municipium,  158,  159,  note. 

Murder,  277,  280-282. 

Museums,  public,  25. 

NAPOLEON,  277,  360. 

National    Assembly,   of    France, 

no. 
Nations,     originally     unfriendly, 

343- 

Natural  selection,  222. 
Navicularii,  156. 
Neagle's  Case,  104. 
Nebraska,  senatorial  nominations 

in,  60. 
Negro,   education,   72;    suffrage, 

26,  50,  52,  in,  112. 
Nemo  tenetur,  etc.,  122. 
Netherlands,  English  trade  with, 

165. 
Netherlands   Trading    Company, 

193,  note. 
Nevada,    admission   as    a    State, 

112. 

New  Armsterdam,  167. 

New  England,  colonial  trade  in, 
190;  farming  in,  156;  manu- 
factures, 190. 

New  Hampshire,  constitutional 
changes  in,  20;  constitutional 
ratification  by  people,  46;  re- 
ligious tests  in,  47,  70. 

New  Jersey,  criminal  procedure 
in>  J39  >  conservatism  of,  139. 


New  London  Society  United,  etc., 
185. 

New  Netherlands,  167. 

New  Orleans,  244. 

New  York,  ballot  in,  28;  code 
pleading  in,  247 ;  general  in- 
corporation laws,  194,  195 ;  Re- 
vised Statutes,  256. 

New  York  City,  167,  184;  bank- 
ing in,  189  ;  foreign  population, 
240;  rogues'  gallery  in,  309; 
water  supply,  189. 

New  Zealand,  legislative  salaries, 
335,  note. 

Newcastle,  211. 

Newspapers,  37. 

Nicholas  I.,  197. 

Niebuhr,  view  of  Roman  corpo- 
rations, 142. 

Nineteenth  century,  characteris- 
tics, 289 ;  international  arbitra- 
tion in,  346. 

Nominations,  for  office,  244, 107  ; 
laws  to  protect,  38,  244. 

Non-residents,  suits  against,  255. 

Normans,  influence  on  English 
law,  273. 

North  Carolina,  charter,  166;  vote 
on  ratifying  Constitution,  21 ; 
Reconstruction  Constitution,  52. 

Northern  &  Central  Bank,  202. 

Norway,  salaried  legislatures,  330. 

Novalis,  130. 

Novgorod,  163. 

OATH,  decisory,  248. 

Obligation  of  contracts,  253. 

Office,  elective,  257  ;  eligibility  of 
women,  70 ;  exclusion  for  crime, 
306 ;  legislative  appointments 
to,  54,  58,  59 ;  motives  for  seek- 
ing, 336;  removals  from,  59,  89 ; 
religious  tests  for,  19,  47,  70. 

Officers,  appointment,  257 ;  re- 
moval, 257. 


382 


INDEX 


Ohio,  habitual  criminal  law,  298. 
Ohio  Company,  188,  note. 
One  man  power,  218. 
Oppidum,  159,  note. 
Ordinance  of  1787,  78. 
Oriental  governments,  42. 
Ortolan,  on  Roman  law,  122. 

PANAMA  Congress,  362. 

Pan-American  Congress,  of  1823, 
362;  of  1890,  349. 

Panic,  of  1836,  203;  of  1837,  54. 

Papacy,  343. 

Pardoning  power,  85 ;  boards  of 
pardons,  138. 

Paris,  trade  in,  161  ;  registration 
of  criminals  in,  310;  university 
of,  197. 

Parish,  160. 

Parks,  25. 

Parole  to  convicts,  298. 

Partnerships,  Anglo-American 
conception  of,  181 ;  civil  law 
conception  of,  181 ;  en  com- 
mandite,  179,  208,  226;  in  Ger- 
many, 209;  Irish  Act  of  1782, 
201;  limited,  179;  mining,  256; 
quasi-corporations,  170;  yield- 
ing to  corporations,  217. 

Party,  conventions,  107,  244;  gov- 
ernment, 38,  233,  244. 

Patents,  colonial,  166,  167. 

Paterfamilias,  144. 

Paternalism,  213. 

Patriotism,  revival  of,  12. 

Patterson,  Wm.,  139. 

Pawn-shops,  public,  213. 

Payson,  Phillips,  20. 

Penal  codes,  Alabama,  77 ;  Aus- 
tria, 280;  Belgium,  307;  Eng- 
lish, 119,  278;  France,  280,  281, 
3°3»  307;  German,  307  ;  Italian, 
307  ;  Louisiana,  297,  311. 

Penn,  Wm.,  167,  168;  heirs  of, 
169- 


Pennsylvania,  colonial  charter, 
167;  constitution  of  1873,  57; 
general  incorporation  laws,  194 ; 
judicial  decisions,  241 ;  peni- 
tentiary system,  242 ;  University 
of,  184. 

Penny-post,  London,  168. 

People,  The,  as  legislators,  259, 
260 ;  of  the  United  States,  So, 
81,84,  1 10. 

People's  charter,  330. 

Perpetuities,  320. 

Physical  force,  inextinguishable, 
260. 

Pinckney,  Charles,  18,  19,  86,  101, 
188. 

Plato,  Republic  of,  22,  87. 

Pleading,  codes  of,  57,  247 ;  is- 
sues in,  279. 

Pliny,  153. 

Plymouth,  colony  of,  167. 

Police,  supervision  of    criminals 

by,  303,  304,  308,  313- 

Police  power,  of  State,  262 ;  of  the 
United  States,  104. 

Politics,  experiments  in,  348. 

Pomeroy,  J.  N.,  135. 

Possession,  adverse,  267 ;  peace- 
able, 268. 

Precedents,  judicial,  250,  270,  285 ; 
reversal  of,  251. 

Prescription,  193,  267. 

President  of  the  United  States,  an 
elective  king,  88 ;  compensation 
and  appointments  of,  322,  323 ; 
diplomatic  powers,  90,  104 ;  his 
veto,  98;  impeachment  of,  100, 
102;  military  power,  90-95;  mode 
of  election,  35,  85 ;  powers,  84, 
109;  quasi- judicial  power,  103; 
refusal  to  execute  laws,  99 ;  rep- 
resents the  people,  109;  right  of 
removal  by,  89,  100;  spokesman 
of  the  nation,  116;  third  term, 
1 10 ;  vacancy  in  office,  108. 


INDEX 


383 


Presumption,  of  guilt,  295,  304; 
judicial,  267. 

Primaries,  38. 

Primogeniture,  262,  333. 

Princeton  College,  184. 

Printing,  effect  of  discovery  of, 
263. 

Prisoners,  aid  societies,  302,  303  ; 
examination  of,  125;  number  in 
United  States,  313. 

Prisons,  made  too  attractive,  313. 

Probation  officer,  306. 

Procedure,  civil,  reform  in,  247, 
268,  283;  criminal,  see  "Crimi- 
nal Procedure ; "  English,  349 ; 
American,  349 ;  law  of  evidence, 
248 ;  legal  fictions,  268-289. 

Process,  imprisonment  for  debt, 
248 ;  legal  fictions  in,  268. 

Progress,  in  jurisprudence,  287. 

Prohibition  of  liquor  selling,  78. 

Property,  constitutional  guaran- 
ties, 39,  262;  defence  of,  277; 
private,  foundation  of,  267 ; 
State  interference  with,  262. 

Prussia,  country  communities, 
210;  private  corporations  in, 
226;  salaried  legislatures,  330, 
note ;  trades  unions  in,  231 ; 
treaty  with  Denmark,  347. 

Ptolemaic  system,  283. 

Public,  credit,  loan  of,  62  ;  grants, 
revocation  of,  252;  inspection 
by,  247 ;  law,  development  of, 
360 ;  opinion,  force  of,  344, 
international,  344,  367 ;  prose- 
cutors, 133,  247  ;  schools,  22 ; 
supervision  of  private  property, 
262 ;  uses,  320. 

Puritanism,  in  New  England,  8. 

Puritans,  debt  to  Holland,  239; 
notion  of  religious  liberty,  15, 1 6. 

QuASi-CoRPORATioNS,  203,  note. 
Queen's  Proctor,  319. 


RAILROADS,  regulation  of  charges 
on,  65,  262;  taxation,  235;  state 
regulation  of,  262 ;  free  passes, 
334- 

Raleigh,  Sir  Walter,  166. 

Real  estate,  transfers  of  titles, 
247. 

Recidivists,  292,  315. 

Reconstruction  laws,  52,  99. 

Record  offices,  24,  247. 

Referendum,  origin  of,  48,  260 ; 
Swiss  use  of,  49. 

Reform  bill,  English,  83,  162,  211, 

243- 

Reformation,  of  criminals,  78; 
Protestant,  341,  342,  343. 

Regina  v.  Keyn,  354,  note. 

Registration,  public,  24;  of  indi- 
vidual citizens,  303. 

Religion,  as  a  social  force,  15. 

Religious,  establishments,  19,  20, 
21 ;  liberty,  15;  test,  19;  socie- 
ties, incorporated,  185. 

Reports,  judicial,  250,  354. 

Republic  of  letters,  196,  345. 

Republics,  executive  power  in,  31 ; 
weakness  of,  30. 

Responsibility,  for  crime,  314;  of 
British  ministry,  32,  97,  267. 

Revenge,  278. 

Revenue,  farmers  of,  147,  154; 
raised  from  corporations,  234, 

235- 

Reverence,  33,  288. 
Revolution,   American,    influence 

on  our  literary  ideas,  264. 
Rheims,  158. 
Rhode   Island,  toleration  in,   15; 

constitutional  law  in,  31 ;  first 

State  Constitution,  46. 
Richelieu,  168. 
Right,  as  a  governmental   force, 

34L 

Rights,  of  the  citizen,  247  ;  equal, 
341 ;  of  individual  against  State, 


INDEX 


247,  253;  of  man,  40;  of  State 
against  individual,  247. 

Robertson,  F.  W.,  7. 

Rogers,  Thorold,  228. 

Rogues'  Gallery,  304,  309. 

Roman  Catholic  Church,  attitude 
towards  schools,  23;  towards 
suicide,  276 ;  before  the  Refor- 
mation, 342  ;  canon  law  over- 
ruled by  civil  law,  246;  ecu- 
menical councils,  343 ;  marriage 
as  a  sacrament,  254;  the  Holy 
Alliance,  360  ;  the  papacy,  343  ; 
Vatican  Council,  10. 

Roman  Catholics,  exclusion  from 
office,  15,  70. 

Roman  law,  as  to  undutiful  wills, 
271,  272,  316;  decisory  oath, 
248 ;  guilds,  143 ;  in  United 
States,  239;  of  corporations, 
141,  145-158;  of  divorce,  254; 
of  libel,  245 ;  of  pleadings,  279 ; 
special  legislation,  146;  Twelve 
Tables,  143,  146,  245,  316. 

Rome,  modern,  227 ;  patriotism 
in,  12;  source  of  the  imperial 
power,  98;  source  of  military 
power,  234 ;  statute  law  in,  36. 
See  "Roman  Law." 

Ross,  Senator,  339,  note. 

Russia,  absolutism  in,  84;  aboli- 
tion of  serfdom,  93;  despotism 
in,  109;  mediaeval  trade,  163; 
number  of  corporations,  226; 
policy  towards  corporations, 
210;  the  Holy  Alliance,  360. 

Russian  Company,  166. 

Rutgers  College,  184. 


ST.  MARY'S  City,  184. 

Salaries,  of  executive  officers,  322 ; 
of  judicial,  323;  of  legislative, 
322-340 ;  the  fee  system,  339 ; 
capitalists  favor  low,  340. 


Savigny,  definition  of  corporation, 
206,  note. 

Savings-banks,  municipal,  213; 
taxation,  235. 

Schleswig-Holstein  difficulty,  347. 

Schools,  public,  72. 

Schouler,  James,  60. 

Scotland,  Act  of  Union,  177 ;  trad- 
ing charters,  168,  177 ;  criminal 
verdicts,  279. 

Secession,  52. 

Secretary  of  State,  1 14. 

Self-crimination,  137. 

Selfishness  of  governments,  130. 

Senators  of  United  States,  60, 
338;  their  pay,  325-328. 

Senegal  Company,  168. 

Sentiment,  as  a  social  force,  221, 
224 ;  as  a  political  force,  360. 

Sentimentalism,  130. 

Shaftesbury,  Lord,  168. 

Sherman,  Roger,  87. 

Shipowners,  Roman,  148,  note. 

Shipping,  American  capital  in  for- 
eign, 227. 

Sigonius,  159. 

Simian  family,  292. 

Skeleton,  human,  291. 

Slaughter  House  Cases,  253. 

Slavery,  Lincoln's  Emancipation 
proclamation,  93. 

Slaves,  protection  of  freedmen,!  1 1. 

Slave-trade,  43. 

Smith,  Adam,  influence  on  United 
States,  18 ;  views  on  corpora- 
tions, 191,  195. 

Socialism,  French  philosophy  of, 
13;  State,  25,  237;  political  in- 
fluence, 212  ;  its  future,  238. 

Societas,  143;  publica,  154. 

Socitit  a  responsabilitt  limitee,  183, 
note. 

Sociltt  anonyme,  181,  201,  207,  226. 

Socittt  en  commandite,  179,  226. 

Soci&tt  par  actions,  181. 


INDEX 


385 


Society,  effect  on  government, 
266,  267. 

South  America,  relations  of  the 
United  States  to,  360;  European 
colonization,  362,  364. 

South  Sea  Co.,  English,  177,  190; 
French,  180. 

Spain,  free  incorporation  law,  210; 
in  South  America,  360;  war 
with  United  States,  356. 

Spectator,  London,  364. 

Spencer,  Herbert,  240. 

Stael,  Madame  de,  276. 

State,  relations  to  its  citizens, 
247 ;  loan  of  credit,  62 ;  police 
power,  262 ;  sovereignty,  253. 

State  socialism,  25,  237. 

State  and  Church,  15;  separa- 
tion, 1 6. 

States,  of  the  United  States,  80 ; 
relation  to  the  United  States, 
43,  80 ;  constitutional  changes 
in,  45  ;  legislatures,  334. 

States-General  of  France,  10. 

Statutes,  form,  337  ;  unsettle  law, 
236;  codification  of,  256,  257; 
colonial,  256;  revisions,  256; 
obsolete,  271,  287  ;  unjust,  271, 
279 ;  repeal,  287.  See  "  Legisla- 
tion." 

Stock  Exchange,  169. 

Stock-jobbing,  168,  178. 

Stoic  philosophy,  282. 

Store,  department,  163. 

Story,  Mr.  Justice,  251. 

Succession,  to  the  dead,  287 ; 
intestate,  144;  custom  of  Kent, 
273 ;  to  land,  269. 

Suffrage,  early  constitutional  lim- 
itations, 47  ;  broad,  25  ;  univer- 
sal, 26;  qualifications,  25,  26, 
47,  74;  female,  27,  70;  negro, 
26,  50,  52,  112;  educational,  78, 
113  ;  British,  27  :  constitutional 
limitations  in  United  States,  69. 


Suicide,  270,  274-277. 

Sumner,  Wm.  G.,  129. 

Susquehannah  Company,  188, 
note. 

Sweden,  trading  companies,  167; 
legislative  salaries,  335. 

Switzerland,  referendum  in,  49, 
260;  free  incorporation  law, 
210;  criminal  laws,  309;  legis- 
lative salaries,  336. 


TACITUS,  259. 

Talleyrand,  345. 

Taney,  chief-justice,  92  ;  as  secre- 
tary of  the  Treasury,  115. 

Tax  payers,  voting  by,  74. 

Taxation,  church  exemptions,  24 ; 
constitutional  provisions  as  to, 
68 ;  of  corporations,  234 ;  may 
lead  to  extravagance,  235;. 
through  municipalities,  234. 

Tenement  houses,  unsanitary,  213. 

Tennessee  law,  as  to  suicide,  275. 

Tenure  of  Office  Act,  99,  100. 

Territories  of  United  States,  gov- 
ernment of,  199. 

Test,  religious,  19. 

Test  Act,  English,  19. 

Teutons,  259. 

Texas,  constitutional  changes  in, 
76. 

Theodosian  Code,  154,  note. 

Torture,  in  criminal  cases,  118, 
121. 

Trade,  American  colonial,  190; 
guilds,  144;  rapidity  of  modern, 
220;  Roman,  144. 

Trade-city,  162. 

Trade  union,  how  produced,  221 ; 
legalized,  200,  220,  231  ;  na- 
tional, 199,  230  ;  political  ideas, 
214;  political  influence,  212. 

Trading  companies,  Dutch,  167 ; 
English,  162,  165-168 ;  French, 


386 


INDEX 


168 ;  Scotch,  168,  177  ;  conflict- 
ing charters,  170;  colonial,  186. 

Trajan,  153. 

Treaties,  have  force  of  law,  in 
United  States,  242  ;  for  arbitra- 
tion, 346,  347 ;  permanent  and 
continental,  350. 

Tredwell,  Thomas,  41. 

Truth,  in  judicial  proceedings,  283. 

Turgot,  320. 

Turkey  company,  166,  note. 

UMPIRE,  351. 

United  Provinces,  215. 

United  States,  abrogation  of  Ar- 
ticles of  Confederation,  12;  ab- 
solutism in,  84;  among  the 
oldest  of  nations,  83;  Articles 
of  Confederation,  51  ;  citizens 
of,  253 ;  continental  responsibili- 
ties, 359,  364;  convention  of 
1787,  10;  criminal  statistics, 
313;  early  weakness  of,  86; 
growth  of,  360 ;  increasing  city 
population,  293 ;  nationalization 
of,  113,  116;  police  power  of, 
104 ;  registration  of  criminals  by, 
310;  relation  to  the  States,  43, 
80 ;  reserved  rights,  1 1 1  ;  sover- 
eignty over  States,  109,  112, 
114;  the  people  of,  80,  81,  84, 
no.  See  "Amendments,  con- 
stitutional," and  "  Constitu- 
tion/' 

Universitas,  144. 

Universities,  degrees  from,  196- 
198 ;  incorporation  under  gen- 
eral laws,  196;  State,  23,  72. 

University  of  Virginia,  23,  24. 

VATICAN  Council,  10. 

Venezuela,  363,  366. 

Vermont,    general    incorporation 

laws,  195. 
Veto   power,  colonial,  31  ;    Eng- 


lish, 97  ;  in  States  and  United 
States,  32,  85,  98  ;  use  by  Presi- 
dent Jackson,  97. 

Vice-President  of  United  States, 
108. 

Vtcus,  159,  note. 

Vienna,  170,  214. 

Virginia,  charter,  166;  criminal 
punishments,  297  ;  delegates  to 
Continental  Congress,  325 ;  re- 
ligious liberty  in,  16. 

Virginia  Company,  166,  167. 

Voting,  ballot,  27,  28,  71;  exclu- 
sion for  crime,  306,  307. 

WAGE  earners,  exemption  from  at- 
tachment, 73;  mediaeval  craft- 
guilds,  161. 

Wages,  combinations  to  raise, 
213. 

Waltzing,  on  Roman  Corpora- 
tions, 155. 

War,  constitutional  impediments 
in  United  States,  361  ;  effect  of 
international  arbitration  courts, 
355 ;  effect  on  individual  liberty, 
253;  progress  towards  extinc- 
tion, 343 ;  social  effects,  50 ; 
Spanish  of  1898,  356;  super- 
sedes courts,  103 ;  suspension 
of  habeas  corpiis,  92-95. 

Washington,  George,  Genet's  re- 
call, 90;  inaugural  address,  44; 
influence  on  frame  of  Consti- 
tution, 106;  influence  on  its 
ratification,  86,  336. 

Waterworks,  city,  171,  192,  195. 

Wealth,  influence  in  colonial  poli- 
tics, 53;  men  of,  in  United 
States,  47. 

Webster,  Daniel,  94. 

West  India  Company,  Dutch,  167  ; 
French,  168;  Swedish,  167. 

West  Jersey,  168. 

Whipping-post,  29$. 


INDEX 


337 


Wife,  253,  254. 

William  and  Mary  College,  185. 

Wills,  charitable  bequests,  274; 
defence  by  State,  316,  English 
statute  of,  273 ;  Falcidian  part, 
272;  hard,  271,  288;  Roman, 
271,272  ;  suits  to  construe,  318  ; 
undutiful,  271,  317. 

Wilson,  James,  on  modern  gov- 
ernment, 7. 

Wingate's  "Maxims,"  122,  123. 

Winthrop,  Governor  John,  166; 
Governor  John,  Jr.,  48. 

Witchcraft,  34. 

Witness,  confidential  communica- 


tions, 56 ;  decisory  oath,  248 ; 
interested,  126,  127,  248. 

Women,  love  of  order,  27 ;  eligi- 
bility to  office,  70  ;  suffrage  for, 
27,  70 ;  married,  253,  254. 

Words,  want  of  apt,  357. 

Workingmen,  Roman  guilds,  143, 
150;  trades  unions,  200,  229- 
231  ;  political  influence,  233, 
332  ;  national  trade  unions,  199 ; 
individual  qualities,  217;  right 
to  combine,  220,  231 ;  decline 
in  small  capitalists,  232. 

YALE  College,  184,  and  note. 


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